        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs July 25, 2012 at Knoxville

                 STATE OF TENNESSEE v. BOBBY JOE LADD

               Appeal from the Circuit Court for Montgomery County
                Nos. 40500655, 40901032     Michael R. Jones, Judge


              No. M2011-02537-CCA-R3-CD - Filed September 21, 2012


The defendant, Bobby Joe Ladd, appeals the revocation of his probation, claiming that the
evidence preponderates against the findings of the trial court. Discerning no error, we affirm
the judgments of the trial court.

             Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.

Kimberly G. Turner, Clarksville, Tennessee, for the appellant, Bobby Joe Ladd.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; John Carney, District Attorney General; and Lee Willoughby, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              On October 3, 2005, the defendant pleaded guilty in case number 40500655
to one count of robbery and received a Range I sentence of eight years to be served on
probation. On October 19, 2009, the defendant pleaded guilty in case number 40901032 to
one count of aggravated assault and received a Range I sentence of five years to be served
on probation. The five-year probationary term in case number 40901032 was to be served
concurrently to the eight-year term imposed in case number 40500655.

              On July 1, 2009, a probation violation warrant issued alleging that the
defendant had violated the terms of his probation in case number 40500655, and the trial
court revoked the probation on the basis of his conviction in case number 40901032. The
court ordered the defendant’s probation reinstated after service of 118 days’ incarceration.
             On January 5, 2011, a probation violation warrant issued alleging that the
defendant had violated the terms of the concurrent probationary sentences in case numbers
40500655 and 40901032 by committing murder and by possessing a knife during the
commission of the murder.

               At the October 28, 2011 probation revocation hearing, Montgomery County
Sheriff’s Department Deputy Kelly Joe Potter testified that he was dispatched to a residence
near Lylewood Road to investigate “a stabbing in progress.” He said that he was the first
officer to arrive on the scene. As he approached the garage, he observed the victim, Eric
Latham, bleeding from a stab wound on the side of his neck. A woman named Jessica
Brewington was applying pressure to the victim’s wounds. Jessica Brewington told Deputy
Potter that the defendant had stabbed the victim. The victim told Deputy Potter “that he felt
like he was dying.”

              After emergency medical personnel arrived, Deputy Potter “deployed” his
police dog “up Lylewood at the intersection of John Taylor and Lylewood” to assist in
locating the defendant. He said that witnesses had reported seeing a man matching the
defendant’s description “going in and out of the woods” in that area.

               Montgomery County Sheriff’s Department Deputy James Derico testified that
he found the defendant “approximately a half of a mile . . . north of the residence.” Deputy
Derico said that when he saw the defendant, he drew his weapon and ordered the defendant
to walk in the direction of Deputy Carl Magee, who was with Deputy Derico. Once the
defendant got nearer to them, Deputy Derico ordered him onto the ground and then
handcuffed him as he lay. When he helped the defendant to his feet, he asked the defendant
the location of the knife he had used during the stabbing. The defendant told Deputy Derico
that he “threw it down in the woods.” Deputy Derico said that the defendant’s clothing was
wet and that he “had some kind of a red stain on the front of his shirt.”

             During cross-examination, Deputy Derico conceded that he did not provide the
defendant with Miranda warnings before asking about the location of the knife.

              During redirect examination, Deputy Derico said that he inquired about the
location of the knife during Deputy Magee’s pat-down of the defendant because he “was
concerned about the knife for [his] safety.”

              Montgomery County Sheriff’s Department Deputy Carl Magee testified that
he responded to “a stabbing call” at a residence in “the area of Lylewood Drive.” He said
that he was “put on perimeter guard of an area that was going to be searched for the suspect.”
In performance of this duty, Deputy Magee encountered the defendant “in the vicinity of

                                             -2-
Charles Taylor Road, approximately the 3200 block of Lylewood Road.” Deputies Magee
and Derico drew their weapons, ordered the defendant to the ground, and Deputy Magee
handcuffed him. Deputy Magee said that both he and Deputy Derico asked the defendant
about a weapon, and the defendant told them that he had thrown it in the woods. Deputy
Magee said that he made the inquiry as he was placing the handcuffs on the defendant and
that he did not provide the defendant with Miranda warnings before asking the question.

               Montgomery County Sheriff’s Department Deputy Mike Cereceres also
responded to the stabbing call and was charged with “canvass[ing] the area . . . looking for
the suspect.” Although he did not find the defendant, he assisted other officers in
transferring the defendant into a nearby patrol car. He saw that there were “extremely wet”
stains on the defendant’s clothing. He said he overheard the defendant claim that he had
stabbed the victim in self-defense.

               Montgomery County Sheriff’s Department Deputy Case Bohn also responded
to the stabbing call, traveling straight to the area where the defendant had last been seen.
After his arrest, the defendant was placed into Deputy Bohn’s patrol car to be transported to
the Criminal Justice Center. Deputy Bohn testified that the defendant “was visibly upset”
and was “very cold and wet.” Deputy Bohn said that as they drove, the defendant inquired
about the condition of the victim. Deputy Bohn testified that although he did not provide the
defendant with the traditional Miranda warnings, he did advise the defendant that any
statement he made could be used against him. At that point, the defendant said “that the
victim had been messing with him all night and that he had acted in self[-]defense.” Deputy
Bohn said that he told the defendant to make his statement to the investigator. According to
Deputy Bohn, the defendant then “became agitated, he stated that the only reason we wanted
to prosecute him was because of his color.”

               Montgomery County Sheriff’s Department Investigator Larry Hodge, who was
assigned as the primary investigator in the case, testified that he interviewed the only
eyewitness, Jessica Brewington, and that she told him that the stabbing occurred on the tail-
end of a New Year’s Eve party at the Lylewood Road residence of her parents. She told him
that “they were trying to close things up in the garage, lock it up and then go into the house
and basically close down the party.” She said that the victim “was trying to help her close
things down and that he was trying to get [the defendant] to exit the garage area” when she
saw the victim “put his hands on [the defendant’s] shoulders and then in a sudden movement
. . . [the defendant] had stabbed [the victim].” The defendant immediately fled from the
garage. Investigator Hodge said that he had interviewed all but four of the 25 people that had
attended the New Year’s Eve party and that none indicated that there was any hostility
between the defendant and the victim during the festivities.



                                             -3-
               During cross-examination, Investigator Hodge acknowledged that Samantha
Brewington told him “that there had been some type of a verbal altercation” between the
victim and the defendant. Another witness indicated that “there was some type of banter”
between the men, but Investigator Hodge said that it was not clear whether that witness
personally observed the interaction or was simply repeating what she had been told. He said
that it was unclear whether the witness in question had actually attended the New Year’s Eve
party. Investigator Hodge said that “[e]very indication that [he] had from [Jessica]
Brewington, the eyewitness, was that it was no[t] self-defense.” He acknowledged, however,
that the victim was more than twice the defendant’s size, outweighing him by nearly 130
pounds. He also acknowledged that the defendant had “a red mark on his neck” when
photographed after his arrest.

               During redirect examination, Investigator Hodge reiterated that the only person
who witnessed the stabbing was Jessica Brewington. He said that Jessica Brewington told
him that the stabbing consisted of “four quick movements.”

               The victim’s autopsy report established that he suffered “[m]ultiple sharp force
injuries” to his neck and head. The report lists eight different stab or incised wounds along
with five serious abrasions to the same area.

                Frank Waynick testified on behalf of the defendant that he attended the New
Year’s Eve party at the Brewington residence and that the victim was “[a]cting like he was
mad about something” during the evening. Mr. Waynick, who described his relationship
with the victim as friendly, said that the victim “had an attitude problem.” Mr. Waynick said
that he did not see the victim interact with the defendant at all, but he related an encounter
during which the victim “grabbed [Mr. Waynick] by [the] collar and jerked [him] up” after
Mr. Waynick refused the victim’s request that he pick up an empty beer can. Mr. Waynick
said that the victim had a reputation for causing trouble when he had been drinking. He said,
“He just seemed like when he got to drinking, the more he drank, he would pick somebody
out to pick on and he would pick on them.” Mr. Waynick recalled that he was the victim’s
primary target and that the defendant “would have been number two.”

              During cross-examination, Mr. Waynick said that, to his knowledge, the victim
and the defendant met for the first time at the New Year’s Eve party. Mr. Waynick said that
he never observed the victim’s directing his bad attitude toward the defendant.

              Brandon Darnell testified that he knew both the defendant and the victim and
that he was on friendly terms with both men, although he did not know either of them well.
He said that he met the victim for the first time in a pool hall and that the victim picked a
fight with him on that evening. Mr. Darnell testified that the victim had a reputation for

                                              -4-
being “[h]otheaded.” Mr. Darnell said that he attended the New Year’s Eve party at the
Brewington residence and that he was not drinking that evening. Mr. Darnell said that he
saw the victim drinking but did not see the defendant with any alcoholic drink.

              Mr. Darnell testified that he saw the victim poke the defendant in the chest, call
his name several times, and call him “a false flaggin N word.” He insisted that the defendant
“kept trying to avoid confrontation” by moving to different parts of the garage where the
party was held. He said that the victim continued “basically being ill with [the defendant];
wanting to threaten him; basically like he wanted to fight him.”

               During cross-examination, Mr. Darnell admitted that he had never actually seen
the victim get into a fight and had simply heard in the community that the victim had done
so. Mr. Darnell said that he left the Brewington residence at approximately 4:30 a.m. He
first learned of the victim’s murder from his girlfriend, who approached him as soon as he
got home that morning. He said that after learning of the murder, he returned to the
Brewington residence for approximately 30 to 35 minutes and then proceeded to the home
of Mary Dillard, the victim’s paramour. Mr. Darnell acknowledged that he did not actually
know Ms. Dillard but claimed that he went to her residence “to give her a hug” and “to show
grief.”

              Sandra Brewington testified that she and her husband gave a New Year’s Eve
party and that they invited the victim, who was a longtime friend, and the defendant, who
was their daughter’s boyfriend and the father of their grandson. She said that the victim
began consuming alcohol immediately after he arrived at their residence sometime in the late
afternoon. In contrast, the defendant only consumed a small amount of wine to ring in the
new year. Sandra Brewington testified that the victim had a reputation for being
“intimidating” and “sometimes a little overbearing.” She said that the victim had started a
fight with her husband and with another man named Donnie on two previous occasions.

              Sandra Brewington testified that she never observed any physical violence
between the defendant and the victim during the party. She said that her daughter made her
aware of a problem between the two men and asked her to have her husband speak with the
victim because “he’s f***** with [the defendant].” She testified that she asked her husband
to speak with the victim, and then she went to bed at approximately 12:15 a.m. because she
had to work the following day.

               During cross-examination, Sandra Brewington testified that she did not witness
any interaction between the defendant and the victim. She said that both she and her husband
classified the victim as a friend and that he visited their home regularly. She acknowledged
that her husband did not actually speak with the victim about her daughter’s complaints but

                                              -5-
instead decided to “watch [the victim].”

               The defendant testified that he knew the victim to be a friend of the
Brewingtons but that he and the victim were not friends. He said that when he arrived for
the New Year’s Eve party, the victim had already consumed some beer. The defendant said
that he only drank two glasses of champagne during the course of the evening. The
defendant testified that the victim, whom he described as “tall; big; intimidating; scary
looking,” “picked on” him throughout the evening and “called [him] a n*****, said he’d
break [him] in half.” The defendant said that he tried to stay away from the victim because
he was afraid of him. The defendant recalled that the victim poked him in the chest in “[a]
threatening manner; very hard.” He said that, on another occasion, the victim ordered him
to get out of a chair and “take the long way around” the pool table. The defendant said that
the victim continued to consume alcohol throughout the evening and that he was “[v]ery
much” intoxicated.

               According to the defendant, at some point, all of the partygoers left except him,
the victim, and Jessica Brewington. The defendant said that he was sitting near the stereo
listening to music, that the victim was sitting at a table, and that Jessica Brewington came
over and asked him if he was ready to go inside. The defendant testified that he told Jessica
Brewington that he “wanted to listen to the music for a little bit longer, and then [the victim]
jumped up and came over to [him].” He said that the victim “put his hands on [the
defendant’s] shoulders” in a “forceful” manner. According to the defendant, the victim put
his thumbs against the defendant’s throat, making it difficult for the defendant to breath. The
defendant said that he thought he was “going to die.” He claimed that he “reached for
anything [he] could get [his] hands on” and “started hitting” the victim. He said that he did
not know what he had grabbed and that the victim continued to squeeze his neck despite the
blows. The defendant said that he “kept hitting” the victim until the victim released him.
The defendant testified that he ran away immediately after being released because he was
“[s]cared of [the victim]” and believed the victim “was going to get” him. He said that the
victim was still standing when he left the garage.

              According to the defendant, he ran into the nearby woods and did not come out
until he “heard the cops.” He claimed that he came out of the woods so that he could “tell
them what happened” at the Brewington residence.

              During cross-examination, the defendant insisted that the victim, whom he had
met on only two or three other occasions, began picking on him for no reason and that “[a]t
random times he would . . . come up to [the defendant] and try to pick a fight.” The
defendant admitted, however, that he had played pool with the victim during the party. He
also admitted that he remained in the garage with only the victim and Jessica Brewington

                                              -6-
after all the other guests had gone. He also conceded that he told Jessica Brewington that he
wanted to remain in the garage alone with the victim and listen to music. The defendant
insisted that although the garage door was open and although the victim was several feet
away when he began walking toward him, he could not have escaped the victim. The
defendant conceded that there were no tables or shelves near where he stood and maintained
that he was able to grab a weapon from thin air.

             The transcript of Jessica Brewington’s preliminary hearing testimony was
introduced by the defendant as an exhibit at the revocation hearing. In that hearing, Jessica
Brewington described the encounter between the defendant and the victim:

              [E]verying was winding down and I was gettin[g] ready to put
              all the food and everything up, and I asked [the defendant] if he
              was ready to go in; and he just said that he wasn’t ready to go in
              and that he would like to stay in the shop and listen to the radio
              for a little while. And [the victim] grabbed him; I don’t know
              if [the victim] was tryin[g] to help me get him in the house, but
              when it happened it happened so fast and I just assumed that
              [the defendant] had stabbed [the victim].

She said that she did not see the weapon that the defendant used to stab the victim. She
testified that the defendant “took off” after stabbing the victim. She said that the victim did
not say anything to the defendant before the defendant stabbed him and acknowledged that
the victim put his hands on the defendant’s shoulders just before the defendant stabbed him.

              At the conclusion of the hearing, the trial court concluded that the facts
adduced at the hearing did not support the defendant’s claim of self-defense. As a result, the
court revoked the defendant’s probation and ordered that he serve the balance of his sentence
in confinement.

              In this appeal, the defendant contends that the trial court erred by admitting
Jessica Brewington’s hearsay statements at the hearing and that the trial court erred by
revoking his probation because the evidence established that he acted in self-defense. We
consider each claim in turn.

                                 I. Admission of Testimony

              The defendant contends that the trial court erred by admitting into evidence the
statements that Jessica Brewington made to police, claiming that the statements constituted
inadmissible hearsay. The State asserts that the trial court committed no error because

                                              -7-
reliable hearsay is admissible in a probation revocation proceeding.

                Because “the issue in a probation revocation proceeding is not the guilt or
innocence of the defendant, the right to confront and cross-examine adverse witnesses is not
absolute and may be relaxed under certain circumstances.” State v. Wade, 863 S.W.2d 406,
407 (Tenn. 1993). Recognizing the need “to preserve the flexible, informal nature of the
revocation hearing, which does not require the full panoply of procedural safeguards
associated with a criminal trial,” Black v. Romano, 471 U.S. 606, 613 (1985), courts
considering the admissibility of evidence at a probation revocation proceeding have
concluded that due process principles rather than the rules of evidence govern, see Wade, 863
S.W.2d at 407; Morrissey v. Brewer, 408 U.S. 471, 487 (1972). As a result, the trial court
determining whether to revoke probation may consider evidence that does not meet the usual
evidentiary requirements. Morrissey, 408 U.S. at 489. That being said, due process
principles require that the probationer be permitted to confront the witnesses against him
unless the trial court “specifically finds good cause for not allowing confrontation.” Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973).

               That said, we note that although the defendant complains that the trial court
failed to make a finding that the witness was unavailable, it was the defendant who insisted
that Jessica Brewington was unavailable for purposes of the rules of evidence and the
defendant who exhibited Jessica Brewington’s preliminary hearing testimony to the probation
revocation hearing. Thus, the defendant cannot now be heard to complain about the
admission of the preliminary hearing transcript. Moreover, even if the trial court erred by
admitting Jessica Brewington’s statements to Investigator Hodge, that error was harmless
given that her statements to the investigator were identical to the testimony she offered at the
preliminary hearing. The defendant is not entitled to relief on this issue.

                                        II. Revocation

               The defendant contends that the trial court erred by revoking his probation
because the State failed to rebut his claim that he stabbed the victim in self-defense. The
State asserts that it was not required to rebut the defendant’s claim and that the evidence
adduced at the hearing supports the revocation.

                The accepted appellate standard of review of a probation revocation is abuse
of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[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, 329 S.W.3d 436, 443 (Tenn. 2010). The

                                              -8-
1989 Sentencing Act expresses a burden of proof for revocation cases: “If the trial judge
finds that the defendant has violated the conditions of probation and suspension by a
preponderance of the evidence, the trial judge shall have the right by order duly entered upon
the minutes of the court to revoke the probation and suspension of sentence. . . .” T.C.A. §
40-35-311(e)(1).

               Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation and
“[c]ause the defendant to commence the execution of the judgment as originally entered, or
otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614 S.W.2d 71,
73 (Tenn. Crim. App. 1980). Following a revocation, “the original judgment so rendered by
the trial judge shall be in full force and effect from the date of the revocation of such
suspension.” Id. § 40-35-310. The revoking court may extend the period of probation
supervision for a period not to exceed two years. Id. § 40-35-308(c).


                 The evidence adduced at the hearing established that the defendant stabbed the
victim multiple times. The defendant claimed that he did not know what he had struck the
victim with, asserting that he had groped wildly for something to defend himself while the
victim choked him. The trial court concluded that the evidence, particularly Jessica
Brewington’s account of the offense, did not support the defendant’s claims. The trial court,
as the trier of fact in a probation revocation hearing, determines the credibility of witnesses.
See generally State v. Mitchell, 810 S.W.2d 733 (Tenn. Crim. App. 1991); see also Carver
v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978). The accredited testimony at the hearing
established that the defendant stabbed the victim multiple times, killing him. In
consequence, the trial court did not err by revoking the defendant’s probation and ordering
him to serve the balance of his sentence in confinement.

              Accordingly, the judgments of the trial court are affirmed.




                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                              -9-
