IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 29, 2019 Session

STATE OF TENNESSEE v. DEDRICK LAMONT LINDSEY

Appeal from the Criminal Court for Hamilton County

No. 291139, 292276, 272531 Don W. Poole, Judge

___________________________________

No. E2018-01502-CCA-R3-CD

___________________________________

Defendant, Dedrick Lamont Lindsey, appeals the trial court’s order revoking his 

probation and imposing his sentence. Defendant argues: (1) that the State failed to 

present “any substantial evidence” to support the trial court’s finding that Defendant 

violated his probation; (2) that the trial court erroneously admitted a witness’s recorded 

statement to police; and (3) that he received ineffective assistance of counsel at the 

probation revocation hearing. Following a thorough review, we affirm the judgment of 

the trial court. 

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN 

EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

Daniel J. Ripper and Calli Kovalic (on appeal), Chattanooga, Tennessee; and Robin 

Flores and Brandon Raulston (at hearing), Chattanooga, Tennessee, for the appellant, 

Dedrick Lamont Lindsey.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant 

Attorney General; Neal Pinkston, District Attorney General; and Cameron Williams and 

Crystle Carrion, Assistant District Attorneys General, for the appellee, State of 

Tennessee.

08/16/2019
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OPINION

Factual and Procedural Background

On November 19, 2009, Defendant pled guilty to possession of cocaine for resale, 

possession of a controlled substance for resale, tampering with evidence, possession of 

drug paraphernalia, and assault in case number 270295, for which the trial court imposed 

an effective five-year sentence that was suspended to supervised probation following the 

service of eleven months and twenty-nine days in jail.1 Additionally, Defendant pled 

guilty to aggravated assault in case number 272531. Pursuant to a plea agreement, the 

trial court sentenced Defendant to four years suspended to supervised probation after the 

service of eleven months and twenty-nine days in jail. The trial court ordered the 

sentence in case number 272531 to run consecutively to Defendant’s five-year sentence 

in case number 270295. 

On February 15, 2011, the trial court issued a probation violation warrant in case 

number 272531, alleging that Defendant violated his probation by being arrested on new 

charges, testing positive for marijuana, and failing to pay fees, court costs, and fines. On 

March 18, 2013, the trial court entered an order in case number 272531, revoking 

Defendant’s probation to time served and returning Defendant to probation. 

On December 9, 2013, the trial court issued a probation violation warrant in case 

number 270295 and 272531, alleging that Defendant tested positive on a drug screen, 

failed to report to probation, was arrested on new charges, was unemployed, and failed to 

pay court costs, fines, and fees. 

On March 19, 2014, the Hamilton County Grand Jury indicted Defendant on 

charges of resisting arrest, possession of drug paraphernalia, possession of a controlled 

substance, possession of marijuana for resale, possession of cocaine for resale, and 

tampering with evidence, in case number 291139. On March 27, 2014, the State 

probation office filed an amended probation violation report in case number 272531, 

alleging that Defendant had been arrested on multiple new charges. 

Thereafter, on July 23, 2014, the Hamilton County Grand Jury indicted Defendant 

for possession of cocaine for resale, possession of marijuana for resale, possession of 

alprazolam for resale, aggravated assault, possession of drug paraphernalia, and resisting 

arrest, in case number 292276. On December 4, 2014, the trial court revoked

 

1 The indictment and judgment forms for case number 270295 are not included in the record on 

appeal. Based on the trial court’s ruling in the instant probation revocation proceedings, it appears that 

case number 270295 is not at issue on appeal. 
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Defendant’s probation in case number 272531 and ordered Defendant to serve eleven 

months and twenty-nine days in jail before returning to probation. The following day,

Defendant pled guilty to attempted possession of cocaine for resale in case number 

291139 and received a sentence of six years suspended to supervised probation after the 

service of eleven months and twenty-nine days in jail. The trial court ordered the sixyear sentence to run consecutively to the sentence in case number 272531. Defendant 

additionally pled guilty to attempted possession of cocaine for resale, possession of 

alprazolam for resale, and aggravated assault in case number 292276. The trial court 

sentenced Defendant to a total effective sentence of six years suspended to supervised 

probation; the trial court ordered the sentence to run consecutively to the sentence in case 

number 291139. 

On April 25, 2017, the trial court issued a probation violation warrant in case 

numbers 272531, 270295, 291139, and 292276, alleging that Defendant had been 

arrested on new charges, had no valid address, and had absconded from supervision. At 

the time of the violation warrant, Defendant had a total effective sentence of sixteen 

years’ probation, as follows:

Case Number Date of Conviction Effective Sentence Concurrent/Consecutive

270295 11/19/09 5 years

272531 11/19/09 4 years Consecutive to 270295

291139 12/5/14 6 years Consecutive to 272531

292276 12/5/14 6 years Consecutive to 291139

State’s Proof

At the beginning of Defendant’s probation revocation hearing, trial counsel 

asserted that the State had failed to provide him with color photographs from a 

photographic line-up shown to witness Regina Orr. When the prosecutor stated that 

discovery was provided in January 2018, trial counsel explained that he was provided 

with “dark copies” of the photographs. He stated, “I get copies of copies of what’s in the 

discovery.” The following exchange then occurred: 

THE COURT: Did you get color copies or not?

[TRIAL COUNSEL]: I did not get color copies.

[PROSECUTOR] WILLIAMS: There was a link provided to [trial 

counsel] back in January of 2018 that had all of the evidence in the master 

case file.
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[TRIAL COUNSEL]: Your Honor, . . . this link that the State is 

starting to use now, it doesn’t open up well. It goes to a redirected page, 

you can’t get to it.

The trial court instructed the State to provide to trial counsel “today whatever he doesn’t 

have then on the link.” 

Following a recess, trial counsel made the following announcement:

[TRIAL COUNSEL]: Judge, I just wanted to correct a representation 

on the record. The State and I [went] back and forth about discovery. They 

were saying January 18th, I looked at that. By way of explanation there has 

been some issues with email and our office . . . but still in all, on 1/18 they 

did send an email . . . . I did a search and it went into spam. The odd part 

about it is that I answered that, looks like I answered it thank you from my

iPhone, so I did want to correct that that the State did send that material.

THE COURT: You were concerned about the colored photos?

[TRIAL COUNSEL]: Yes, Your Honor.

THE COURT: I am glad both of you brought that up. That’s fine.

Regina Orr testified that, on the evening of March 24, 2017, she was sitting in the 

passenger side of her car, which was parked on Rawlings Street. Her cousin, Jermichael 

Wright, was sitting in the driver’s seat. Ms. Orr explained that Mr. Wright “jumped out”

of the car and began arguing with “Dinky,” whom she identified as Defendant. Ms. Orr 

stated that she could see Defendant from where she was sitting but that she did not recall 

seeing Defendant with a gun. Ms. Orr recalled speaking to Detective Daryl Slaughter 

about the incident while she was in the hospital. She remembered the detective asking 

her if Defendant had a gun, but she could not recall her response. She testified that she 

did not recall telling Detective Slaughter that Defendant fired a gun at her. Ms. Orr 

explained that she woke up on March 25 in the hospital, where the doctor explained to 

Mr. Orr that she was paralyzed from her “lower bottom down.” Ms. Orr explained that 

her paralysis was “incomplete”; she had “feeling” but was not able to move. 

Ms. Orr testified that she was reluctant to testify at the probation revocation 

hearing. She stated that she was scared of Defendant because of “threats” she had 

received from him. The following exchange between the State and Ms. Orr then 

occurred:
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Q. Ms. Orr, are you afraid to speak out against [Defendant] because 

you saw him the night that you were shot?

A. Yes.

Q. Was [Defendant] the one who shot you that day?

A. Yes.

Ms. Orr stated that she did not see Defendant with a gun but stated that neither she 

nor Mr. Wright had a gun that night, and no one else was present at the time of the 

shooting. Ms. Orr recalled that she spoke to Detective Slaughter on two occasions. She 

recalled that he asked who shot her, and Ms. Orr recalled that she told the detective that 

Defendant shot her. She did not recall telling Detective Slaughter that she saw Defendant 

pull out a gun and pull the trigger. Ms. Orr reiterated that Defendant was the individual 

that shot her. 

On cross-examination, Ms. Orr agreed that, from March 2017 until May 2017, she 

was using prescribed medications “quite heavily” for her condition. She agreed that she 

took oxycodone, Percocet, and valium but could not recall taking morphine. Ms. Orr 

denied that she was bipolar and denied telling hospital staff that she was suicidal. She 

further denied using drugs on the night of the offense. She stated that the first time she 

saw Defendant was on the day she was shot. She stated that Mr. Wright told her they 

were going to meet “Dinky.” She explained that she saw Defendant standing about ten 

feet away on the sidewalk “when [they] pulled up.” She explained that she was shot 

under her left arm. She stated that she was on medication on May 12, 2017, when she 

viewed the photographic line-up but that she was no longer taking morphine and valium. 

Detective Daryl Slaughter of the Chattanooga Police Department testified that on 

March 24, 2017, he was notified of the shooting on Rawlings Street. Detective Slaughter 

learned that both Mr. Wright and Ms. Orr were shot; Mr. Wright was taken to Parkridge 

Hospital, and Ms. Orr was taken to Erlanger Hospital. The detective first spoke to Mr. 

Wright. He then went to Erlanger and attempted to speak to Ms. Orr; however, she was 

heavily medicated and was having a CT scan, and he could not speak to her at that time. 

He visited Ms. Orr several other times at Erlanger but was unable to interview her 

because she was still heavily medicated. 

Detective Slaughter explained that, on May 12, 2017, he went to Health South, 

where Ms. Orr was sent for rehabilitation, and interviewed her there. Regarding the 

interview on May 12, Detective Slaughter stated:
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Yes, we had a great conversation, even spoke to her nurse, made 

sure she was able and went in there and I record[ed] the interview. She was 

able to tell me details and was very alert. 

Detective Slaughter testified that Ms. Orr was aware that she was being recorded. 

During the interview, Mr. Orr told Detective Slaughter that she was shot while sitting in 

the passenger side of her vehicle. She explained that she was paralyzed from the waist 

down. Ms. Orr said that “Dinky” shot her. Ms. Orr told Detective Slaughter that she had 

seen him with a gun and that she was able to see him from where she sat in the car. 

Detective Slaughter stated that he was able to link the nickname “Dinky” to Defendant. 

He then put together a photographic line-up containing Defendant’s photograph, and a 

patrol officer showed it to Ms. Orr. Ms. Orr identified Defendant from the line-up as the 

person who shot her. 

The State then introduced Ms. Orr’s recorded audio statement given to Detective 

Slaughter at Health South on May 12, 2017. On the recording, Ms. Orr identified her 

shooter as “Dinky” and said that she had seen him before. She thought he was not 

shooting at her, but at her cousin, Mr. Wright. She did not know why he was shooting at 

Mr. Wright but said that was what she had heard. Ms. Orr emphasized that she had seen 

Dinky, not simply heard that he was the one who shot her. She stated that she saw him 

pull the gun out and pull the trigger. Ms. Orr said that she was “one hundred percent 

positive” he was the one who shot her. She was able to say where she was and give her 

security code for Health South. 

 

As Ms. Orr’s recorded statement played, the following colloquy occurred:

[TRIAL COUNSEL]: Same objections I made earlier prior to. This 

is different than refreshing his recollection of the statement.

THE COURT: I think the State seeks to . . . introduce this under 

Rule 26, prior inconsistent statements of a testifying witness. Apparently 

it’s an audio recording of that so the [c]ourt has to determine whether this 

was trustworthy and whether it would be admissible or not but that 

determination will be made.

. . . . 

[TRIAL COUNSEL]: . . . There was quite a bit of hearsay from Ms. 

Orr leading up to this point. So if I lodge an objection, hearsay from Ms. 

Orr as far as admissibility of this, the substance of her statements to this 

[c]ourt.
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THE COURT: I am going to allow the statement to be played. It 

was some hearsay but I think he’s leading into the pertinent part of the 

questioning, so I’ll allow the tape to be played. But your exceptions are 

noted.

. . . . 

[TRIAL COUNSEL]: There was, Judge. We are starting to go into -

- at this point it sounds like he is just doing an investigation, an 

investigative summary about something a lot more than who shot me. He is 

giving editorializations, sounds like he is coaching the witness by saying I

want to do everything I can for you. Then it goes into stuff about gang 

activity.

. . . . 

THE COURT: [Trial counsel], I am going to let her play it and we 

will determine the relevancy or probative value or not at that time.

[PROSECUTOR] WILLIAMS: If there is any mention of any gangs, 

that [Defendant] be involved in gangs, we’d ask the [c]ourt to disregard that 

if there is a mention of it.

THE COURT: [Trial counsel] sought to do it and I think it was 

objected to and sustained.

. . . . 

[PROSECUTOR] WILLIAMS: It is not our purpose in playing the 

statement to put gang affiliation from any of the parties in front of the 

[c]ourt.

THE COURT: So is that what happens with the rest of the recording 

though or not?

[PROSECUTOR] WILLIAMS: No.

THE COURT: Okay. Go ahead and play it then.

(Audio being played).
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[TRIAL COUNSEL]: Your Honor, I am going to have to continue to 

object. I may be jumping up and down like a Jack-in-the-Box or 

Wackamol or whatever, but I don’t see how any of this is even relevant.

THE COURT: I think she is beginning to testify about why the 

shooting took place, so I think that would be relevant and probative. I’ll 

overrule your objection.

(Audio being played).

[TRIAL COUNSEL]: Your Honor, I’ve got to continue to lodge an 

objection. I don’t see how in the world his editorializations –

THE COURT: Well, what he has talked about, [Mr. Wright] about, 

I’ll sustain if that’s what the tape shows.

[TRIAL COUNSEL]: We are going far, far afield as to what –

[PROSECUTOR] WILLIAMS: I think we got in what was 

inconsistent with her testimony today. I think she indicated that she did not 

see a gun and it is clear in the statement that she says she is a hundred 

percent certain that she saw Dinky pull out a gun and then shoot her. I 

think really that’s all we intended to play. So if the Court --

THE COURT: I have heard what her testimony is and the recording, 

so I’m satisfied with that.

[PROSECUTOR] WILLIAMS: Sure. So we will end the recording 

at this time.

Christina Barnes with the Tennessee Department of Correction, Probation and 

Parole testified that she reviewed Defendant’s record and his prior probation violations 

but that she did not supervise him. Ms. Barnes explained that, in December 2014, 

Defendant pled guilty to aggravated assault and received a four-year sentence in case 

number 272531. He pled guilty to attempted possession of cocaine for resale and was 

sentenced to six years in case number 291139, which the trial court ordered to run 

consecutively to case number 272531. Defendant then pled guilty to attempted 

possession of cocaine for resale, possession of alprazolam for resale, and aggravated 

assault in case number 292276 and received an effective six-year sentence that was 

ordered to run consecutively to the sentences in Defendant’s prior cases. Ms. Barnes 

stated that Defendant had a total effective sentence of sixteen years’ probation. Ms. 
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Barnes explained that a violation of probation was filed against Defendant in February 

2011, and the trial court revoked Defendant’s probation in March 2013. Defendant was 

returned to probation, but a second violation was filed in December 2013, which was 

amended in March 2014. The trial court sustained the second violation and returned 

Defendant to probation after the service of eleven months and twenty-nine days in jail. 

Defendant’s Proof

Tanisha Clark, Defendant’s sister, testified that she was living with Defendant in 

an apartment on Harley Lane in April 2017. Ms. Clark explained that Defendant was 

living at the apartment while he was on probation and that his probation officer came to 

the residence one time, but she was not present for any home visits by the probation 

officer in March 2017. Ms. Clark stated that she thought Defendant was reporting 

frequently to his probation officer but that she did not take him to any probation 

appointments. Ms. Clark testified that her nephew, Dedrick Lindsey, Jr., went by the 

nickname “Dinky” or “Little Dinky[.]” However, she stated that Defendant did not go by 

the nickname “Dinky.” She explained that her nephew was now incarcerated. Following 

Ms. Clark’s testimony, the trial court continued the hearing in order to “look at all the 

facts and all the things we’ve heard” and to hear arguments from counsel.

Defendant then recalled Ms. Barnes, who testified that April 4, 2017, had been 

Defendant’s scheduled report date. She explained that Defendant had a scheduled home 

visit the following day, April 5, 2017, but that no one answered the door at Defendant’s 

residence. However, Ms. Barnes acknowledged that there had been “some issue about 

whether [Defendant] lived at 5050 Harley or 5051.” 

Trial Court’s Ruling 

Following the argument of counsel, the trial court ruled as follows:

So before the [c]ourt for consideration as to whether or not 

[Defendant] has violated the probation are three cases totaling sixteen 

years. . . . 

Now, in regard to whether or not [Defendant] has violated the 

conditions of probation, we heard from Ms. Regina Orr who testified in a 

wheelchair, she is paralyzed from the waist down, that a shooting did occur 

on March 24, 2017. She was in a car on Rawlings Street with another 

individual, Jermichael Wright, that an argument ensued on that date and 

then an individual that she indicated in yesterday’s hearing was [Defendant]

did in fact shoot her, although she was somewhat hazy about all the
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circumstances at that time. The case has in fact been set for hearing on 

several occasions when Ms. Orr was not present. She did indicate that she

met with Detective Slaughter later and gave a statement.

Let me indicate initially I didn’t quite understand where the State 

was going in asking about inconsistent or prior statements and then the 

State did indicate that they were relying on prior inconsistent statement of a 

testifying witness under Rule 26, Chapter 803 about hearsay exceptions. In 

regard to that, I think the [c]ourt does need to make a ruling concerning the 

acceptance of that testimony and I’ll discuss that in just a moment. So she 

indicates at that time that some difficulty in remembering exactly what 

happened. The State did ask her about giving a statement to Detective

Slaughter earlier which was somewhat inconsistent which she admitted or 

agreed to.

Next we heard from Detective Daryl Slaughter with the Chattanooga 

Police Department, Major Crimes, for two years. He indicated he was 

involved in the investigation of the shooting on March 24, 2017. Two

individuals were shot, Ms. Orr was shot, Mr. [] Wright was shot. Both 

went to different hospitals. He did go on two occasions to interview [Ms.]

Orr at Erlanger Hospital and determined that she was too heavily medicated 

and he gives credible proof of seeing her and seeing what condition she was 

in at that time. He did go back, however, on May 12, 2017 at Health South 

Rehab and interviewed her again and took an audio statement which came 

into evidence as Exhibit 1 of the testimony. Based upon his testimony and 

based upon what I heard on the audio statement, she clearly answered 

questions at that time. She was very clear about what happened, about a 

shooting that did take place on the evening that she testified about earlier.

Now, in regard to Rule 26 under the hearsay exceptions of 803, the 

law indicates that prior inconsistent statements may be admitted as 

substantive evidence in certain very limited situations. In this situation 

there was an audio statement taken, presented in court as Exhibit 1. I do 

find in regard to that and based upon her testimony and her appearance in 

court yesterday, it has been established by a preponderance of the evidence 

that that statement was given under circumstances indicating

trustworthiness. I do think other guidelines for discussions about prior 

inconsistent statements ha[ve] been met. So I do consider the audio 

recording taken by Detective Slaughter as substantive evidence. Detective 

Slaughter gave very credible evidence that on the two occasions she was 

not able to talk to him but on this occasion she was and based upon what I
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heard yesterday, this statement was trustworthy, it was an audio recording 

very clearly heard at that time.

We also heard from Christina Barnes, probation and parole officer, 

the liaison with the courts that she had reviewed [Defendant’s] record about 

prior violations. He has been before the [c]ourt on two prior occasions for 

violating the conditions of probation. She indicates possibly that 

[Defendant] absconded because two visits were made to the home on 

Harley Lane, 5050 Harley Lane. There is some apparent misunderstanding 

about where he did live. I will find there is some evidence that maybe 

[Defendant] didn’t give his correct address. I did hear from his sister who 

explained that she lived with him at 5050-B Harley Lane and she did 

receive some notification that the probation officer had been there and 

[Defendant] did go down a short while thereafter and reported to the 

probation officer. Shortly thereafter he was arrested. I don’t give a lot of 

weight to the fact that he absconded.

I do give a great deal, overwhelming weight by the preponderance of 

the evidence, I do find that [Defendant] on the date in question of March 

24, 2017, did assault, severely injure [Ms.] Orr who is now paralyzed from 

the waist down, that he did possess a weapon, that he was convicted with a

prior drug offense possessing that weapon and he did possession a deadly 

weapon in regard to that.

So I do find, once again, by a preponderance, if not overwhelming 

evidence[,] that he has violated the conditions of probation.

The trial court revoked Defendant’s probation and imposed his sentences in case numbers 

272531, 291139, and 292276. 

Motion to reconsider

At a hearing on August 15, 2018, the trial court heard Defendant’s pro se motion 

to reconsider. Defendant claimed that he did not have discovery relating to his probation 

violation before the hearing. He argued, “I wasn’t able to use it at the probation hearing. 

If you would have had . . . to hear the evidence, I would have been able to . . . show you 

that the witnesses were lying under oath. I have statements that were in the discovery 

that will show you that they did lie they testified falsely, but I wasn’t able to produce that 

because I didn’t have that at the time.” Defendant claimed that he did not receive 

discovery until two days after the probation revocation hearing. Prosecutor Williams 

responded, “Well, that’s actually not true. The discovery was provided in January of 
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2018 and he had it for settlement.” The trial court overruled Defendant’s motion to 

reconsider. This timely appeal follows.

Analysis

1. Evidence of probation violation

On appeal, Defendant contends that the State failed to present “any substantial 

evidence” to support the trial court’s finding that Defendant shot Ms. Orr. He contends 

that the only proof offered was two contradictory statements by a single witness and that 

Ms. Orr’s recorded statement was unreliable because the witness was under the influence 

of heavy medication and because the statement was taken nearly two months after the 

shooting. Defendant further asserts that the statement offered was unreliable because it 

was not based on Ms. Orr’s personal knowledge but was based on what other individuals

told her. The State responds that the record contains substantial evidence supporting the 

trial court’s revocation decision. 

Upon a finding by a preponderance of the evidence that a defendant has violated a 

condition of his or her probation, a trial court may revoke probation and order the 

imposition of the original sentence. Tenn. Code Ann. §§ 40-35-310, -311 (2018); State v. 

Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810 

S.W.2d 733, 735 (Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling 

on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 

2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse 

of discretion, a defendant must show that there is “no substantial evidence” in the record 

to support the trial court’s determination that a violation of probation has occurred. Id. 

Proof of a violation does not need to be established beyond a reasonable doubt. State v. 

Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). Rather, if a trial court finds by a 

preponderance of the evidence that a violation has occurred, the court may revoke the 

probation and suspension of the sentence. Tenn. Code Ann. § 40-35-311(e) (2018).

Proof of a probation violation is sufficient if it allows the trial judge to make a 

conscientious and intelligent judgment. State v. Gregory, 946 S.W.2d 829, 832 (Tenn. 

Crim. App. 1997). “In probation revocation hearings, the credibility of witnesses is for 

the determination of the trial judge.” State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. 

App. 1980) (citing Bledsoe v. State, 387 S.W.2d 811, 814 (Tenn. 1965)). The findings of 

fact made by the trial court are to be given the weight of a jury verdict. State v. Lewis, 

917 S.W.2d 251, 257 (Tenn. Crim. App. 1995). Those findings are binding on this court 

unless the evidence preponderates otherwise. Id.
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Here, at the conclusion of the probation revocation hearing, the trial court found 

by a preponderance of the evidence that Defendant had violated the conditions of 

probation. The trial court found that on March 24, 2017, Defendant shot and severely 

injured Ms. Orr, resulting in her paralysis from the waist down, and that Defendant 

possessed a weapon. The trial court explained that Ms. Orr testified that “[s]he was in a 

car on Rawlings Street with another individual, Jermichael Wright, that an argument 

ensued on that date and then an individual that she indicated . . . was [Defendant] did in 

fact shoot her, although she was somewhat hazy about all the circumstances at that time.” 

The trial court found that on May 12, 2017, Ms. Orr met with Detective Slaughter, gave 

him a statement, and identified Defendant in a photographic line-up as the individual who 

shot her. Regarding Ms. Orr’s recorded statement, the trial court determined, “Based 

upon [Detective Slaughter’s] testimony and based upon what I heard on the audio 

statement, [Ms. Orr] clearly answered questions at that time. She was very clear about 

what happened, about a shooting that did take place on the evening that she testified 

about earlier.” 

Upon review, we discern no abuse of discretion by the trial court. Following 

Defendant’s arrest on new charges of aggravated assault, felon in possession of a 

weapon, and possession of a firearm while in commission of a dangerous felony, the trial 

court issued a probation violation warrant based, in part, on Defendant’s failure to obey 

the laws of the state. At the probation revocation hearing, Ms. Orr testified that, on the 

evening of March 24, 2017, she was sitting in the passenger side of her car, which was 

parked on Rawlings Street. Ms. Orr explained that Mr. Wright “jumped out” the car and 

began arguing with “Dinky,” whom she identified as Defendant. Ms. Orr explained that 

Defendant shot her, resulting in her paralysis from her “lower bottom down.” Ms. Orr 

stated that she did not see Defendant with a gun, but she also stated that neither she nor 

Mr. Wright had a gun that night and that no one else was present at the time of the 

shooting. Ms. Orr recalled that she spoke to Detective Slaughter on two occasions. She 

recalled that he asked who shot her and that she told the detective that Defendant shot 

her. However, Ms. Orr did not recall telling Detective Slaughter that she saw Defendant 

pull out a gun and pull the trigger.

Detective Slaughter testified that he responded after the shooting of Ms. Orr and 

Mr. Wright on Rawlings Street on the night of March 24, 2017. He explained that he

went to Erlanger Hospital and attempted to speak to Ms. Orr on several occasions, but he 

was unable to interview her because she was heavily medicated. Detective Slaughter 

explained that, on May 12, 2017, he went to Health South, where Ms. Orr was sent for 

rehabilitation, and interviewed her there. Regarding the interview on May 12, Detective 

Slaughter stated, “[W]e had a great conversation, even spoke to her nurse, made sure she 

was able and went in there and I record[ed] the interview. [Ms. Orr] was able to tell me

details and was very alert.” Detective Slaughter testified that Ms. Orr said that “Dinky” 
- 14 -

shot her. She told Detective Slaughter that she had seen him with a gun and that she was 

able to see him from where she sat in the car. Detective Slaughter stated that he was able 

to link the nickname “Dinky” to Defendant. He then put together a photographic line-up 

containing Defendant’s photograph, and a patrol officer showed it to Ms. Orr. Ms. Orr 

identified Defendant from the line-up as the person who shot her. 

a. Cancellation rule

Defendant argues that the record does not contain substantial evidence supporting 

the conclusion reached by the trial court “because the only proof offered was 

contradictory statements” by Ms. Orr and “[c]ontradictory statements of a witness in 

connection with the same fact have the result of cancelling each other out.” The State 

responds that the “cancellation rule” does not apply to Defendant’s case. The State 

argues that the contradiction between Ms. Orr’s unsworn statement to Detective 

Slaughter and her sworn hearing testimony created “only a prior inconsistent statement 

governed by Rule 613, not two sworn statements governed by the cancellation rule.” 

“Tennessee courts have recognized the rule of law, commonly referred to as the 

cancellation rule, ‘that contradictory [sworn] statements made by a witness as to the same 

fact can cancel each other out.’” State v. Finch, 465 S.W.3d 584, 603-04 (Tenn. Crim. 

App. 2013) (alteration in original) (quoting State v. Caldwell, 977 S.W.2d 110, 118 

(Tenn. Crim. App. 1997)). “This is because when the proof of [a] fact lies wholly with 

one witness, and he both affirms and denies it, then there is no evidence at all to prove the 

fact.” Id. at 604 (alteration in original) (quoting State v. Matthews, 888 S.W.2d 446, 449-

50 (Tenn. Crim. App. 1993) (internal quotation marks omitted). “Tennessee courts have 

uniformly applied the [cancellation] rule in those instances in which a witness’s sworn

statements are contradictory.” State v. Michael Dwayne Edwards, No. W1999-00591-

CCA-R3-CD, 2000 WL 674671, at *3 (Tenn. Crim. App. May 16, 2000) (emphasis in 

original) (quoting State v. Roger Dale Bennett, No. 01C01-9607-CC-00319, 1998 WL 

909487, at *5-6 (Tenn. Crim. App. Dec. 31, 1998), perm. app. denied (Tenn. 1999)) 

(internal quotation marks omitted), perm. app. denied (Tenn. Dec. 4, 2000). 

Here, Ms. Orr’s hearing testimony was not contradictory in itself. Although her 

testimony was inconsistent in many respects with earlier statements that she made to 

Detective Slaughter, Ms. Orr’s earlier statements were unsworn and, thus, not subject to 

the cancellation rule. Ms. Orr was consistent—in her hearing testimony and in her 

statement to Detective Slaughter—that she was sure Defendant shot her. This consistent 

fact was, as the State says, “the most damning part of Ms. Orr’s testimony.” Defendant 

has failed to show that there is “no substantial evidence” in the record to support the trial 

court’s determination that a violation of probation occurred.
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b. Reliability of Ms. Orr’s recorded statement

Defendant also attacks the reliability of Ms. Orr’s recorded statement. He 

contends that the statement was unreliable “due to Ms. Orr’s heavily medicated state” and 

because, in the two months following the shooting, “other people had been telling Ms. 

Orr that [Defendant] was the individual who shot her.” The State responds that the trial 

court properly found the recorded statement reliable and that the proof does not 

preponderate against the trial court’s credibility determination. 

Detective Slaughter testified that he sought to interview Ms. Orr on prior 

occasions while she was still in the hospital but that he did not do so because he could 

recognize that she was too heavily medicated. However, when he visited Ms. Orr at the 

rehabilitation center on May 12, 2017, Detective Slaughter had a “great conversation” 

with Ms. Orr, and he testified that she was “very alert” and able to recount details of the 

shooting. The trial court accredited this testimony from Detective Slaughter. Moreover, 

in the recorded statement, Ms. Orr demonstrated that she was alert and aware. She 

identified Defendant as the shooter without coaching or hesitation, and she told Detective 

Slaughter that she had actually seen Defendant and did not simply hear from others that 

he was the assailant. The proof does not preponderate against the trial court’s 

determination the recorded statement was reliable. 

c. Imposition of original sentence

Once a trial court has determined that a violation of probation has occurred, the 

court has the discretionary authority to order the defendant to: (1) incarceration; (2) have 

the defendant serve the original sentence; (3) modify the conditions of the defendant’s 

probation; or (4) extend the defendant’s probation period for up to two additional years. 

See Tenn. Code Ann. §§ 40-35-308(a), -308(c), -310, -311(e) (2018); State v. Hunter, 1 

S.W.3d 643, 648 (Tenn. 1999). The determination of the proper consequences of the 

probation violation embodies a separate exercise of discretion. State v. Reams, 265 

S.W.3d 423, 430 (Tenn. Crim. App. 2007).

In this case, the trial court concluded that the proper consequence for Defendant’s

violation of probation was the execution of Defendant’s sixteen-year sentence after 

finding that Defendant “ha[d] been before the [c]ourt on two prior occasions for violating 

the conditions of probation.” Ms. Barnes testified that a violation of probation was filed 

against Defendant in February 2011, and the trial court revoked Defendant’s probation in 

March 2013. Defendant was returned to supervised probation, but a second violation was 

filed in December 2013, which was amended in March 2014. The trial court sustained 

the second violation and returned Defendant to probation after the service of eleven 

months and twenty-nine days in jail. It is clear from the record that Defendant has 
- 16 -

continued to violate the terms of his probation and that the trial court’s prior attempts to 

bring Defendant into compliance through periods of incarceration were unsuccessful. 

The trial court’s decision to impose Defendant’s sixteen-year sentence is fully supported 

by the record and was not an abuse of discretion. Defendant is not entitled to relief. 

 

2. Admission of Ms. Orr’s recorded statement

Defendant asserts that the admission of Ms. Orr’s recorded statement violated his 

due process rights because: (a) it did not qualify as admissible “reliable hearsay”; (b)

Defendant did not receive the recorded statement prior to the hearing; and (c) the 

recorded statement contained hearsay within hearsay. The State responds that the trial 

court properly admitted the recorded statement as reliable hearsay and that Defendant is 

not entitled to relief based on his claims that the State failed to provide the recorded 

statement to him prior to the probation revocation hearing and that the statement 

contained hearsay within hearsay. The State additionally argues that Ms. Orr’s hearing 

testimony that Defendant shot her provided “all the proof that was necessary to find a 

probation violation by a preponderance of the evidence” and that Ms. Orr’s recorded 

statement related “wholly to an ancillary issue—whether the victim saw [Defendant] 

draw a gun and shoot her.” Moreover, the State notes that this “ancillary issue” was 

proven through other evidence. 

In matters of probation revocation, defendants are not entitled to “the full panoply 

of procedural safeguards associated with criminal trial” but nonetheless “must be 

afforded due process in the revocation proceeding.” State v. Wade, 863 S.W.2d 406, 408 

(Tenn. 1993) (quoting Black v. Romano, 471 U.S. 606, 613 (1985)) (internal quotation 

marks omitted). The United States Supreme Court set forth the minimum due process 

requirements for probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 

786 (1973). Those requirements include: (1) written notice of the allegation; (2) 

disclosure of adverse evidence; (3) an opportunity to be heard and present witnesses and 

evidence; (4) a conditional opportunity to cross-examine witnesses; (5) “an independent 

decision maker”; and (6) a written statement from the decision maker regarding evidence 

relied upon and the reasons for revocation. Gagnon, 411 U.S. 786. 

“Strict rules of evidence do not apply at revocation hearings.” Lewis, 917 S.W.2d 

at 257 (citing Practy v. State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974); Barker v. 

State, 483 S.W.2d 586 (Tenn. Crim. App. 1972)). “Reliable hearsay has been held 

admissible in a probation revocation hearing so long as the defendant had a fair 

opportunity to rebut the evidence.” Id. (citing State v. Carney, 752 S.W.2d 513 (Tenn.

Crim. App. 1988)). In order for hearsay evidence to be deemed admissible, a trial court 

must find that “good cause” exists to justify the denial of the right to confront witnesses 

and that the hearsay evidence is reliable. Wade, 863 S.W.2d at 409. 
- 17 -

a. Reliable hearsay

Defendant asserts that Ms. Orr’s recorded statement did not qualify as reliable 

hearsay because the State made several misrepresentations and/or omissions regarding 

the contents of the statement when presenting it to the trial court. As noted by the State, 

however, Defendant made several objections to the admission of the recorded statement 

but did not object on the ground that the State failed to disclose the precise nature of the 

recorded statement to the trial court before it was played. “It is elementary that a party 

may not take one position regarding an issue in the trial court, change his strategy or 

position in mid-stream, and advocate a different ground or reason in this [c]ourt[.]” State 

v. Adkisson, 899 S.W.2d 626, 635-36 (Tenn. Crim. App. 1994). Defendant has waived 

consideration of this claim.

Moreover, Defendant has not established the need for plain error review. See 

State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (stating that “[i]t is the accused’s 

burden to persuade an appellate court that the trial court committed plain error”). First, 

Defendant was not denied the right to confront the witness against him by the trial court’s 

admission of the recorded statement. Ms. Orr was available and testified at the probation 

revocation hearing. See State v. Larry Huskey, No. 03C01-9107-CR235, 1992 WL 

113412, at *2 (Tenn. Crim. App. May 28, 1992) (“[The witness] testified and was crossexamined extensively. There was no denial of the right to confront witnesses.”). 

Additionally, the trial court properly concluded that the recorded statement was 

“reliable hearsay” as it was admissible under Tennessee Rules of Evidence 613 and 

803(26). Rule 613 provides, in relevant part, that “[e]xtrinsic evidence of a prior 

inconsistent statement by a witness is not admissible unless and until the witness is 

afforded an opportunity to explain or deny the same and the opposite party is afforded an 

opportunity to interrogate the witness thereon, or the interests of justice otherwise 

require.” Tenn. R. Evid. 613(b). This court has stated that extrinsic evidence of a prior 

inconsistent statement is appropriate if the witness denies or does not recall making the

statement or if the witness “equivocates about making it.” State v. Ackerman, 397 

S.W.3d 617, 638 (Tenn. Crim. App. 2012). Ordinarily, “prior inconsistent statements 

offered to impeach a witness are to be considered only on the issue of credibility, and not 

as substantive evidence of the truth of the matter asserted in such statements." State v. 

Reece, 637 S.W.2d 858, 861 (Tenn. 1982). However, Tennessee Rule of Evidence 

803(26) governs the admissibility of a prior inconsistent statement as substantive 

evidence and provides, as follows:

A statement otherwise admissible under Rule 613(b) if all of the 

following conditions are satisfied:
- 18 -

(A) The declarant must testify at the trial or hearing 

and be subject to cross-examination concerning the statement.

(B) The statement must be an audio or video recorded 

statement, a written statement signed by the witness, or a 

statement given under oath.

(C) The judge must conduct a hearing outside the 

presence of the jury to determine by a preponderance of the 

evidence that the prior statement was made under 

circumstances indicating trustworthiness. 

Tenn. R. Evid. 803(26). The Advisory Commission Comments clarify that “only prior 

inconsistent statements, and not consistent statements, are within the ambit of this rule.”

Tenn. R. Evid. 803(26), Advisory Comm’n Cmts.

Here, Ms. Orr testified at the revocation hearing and was cross-examined 

extensively on the statement to Detective Slaughter. The statement was an audio 

recording, and the trial court determined by a preponderance of the evidence that the 

prior statement was made under circumstances indicating trustworthiness. Thus, each of 

Rule 803(26)’s requirements were met. Once the statement qualified for the hearsay

exclusion of Rule 803(26), it was admissible as substantive evidence. Under Rule 

613(b), extrinsic evidence of a prior inconsistent statement is appropriate if the witness 

“denies or does not recall making the statement” or if the witness “equivocates about 

making it.” The State did not seek to introduce Ms. Orr’s prior inconsistent recorded

statement until she equivocated about whether she told Detective Slaughter that she saw 

Defendant pull out a gun and fire at her. In the recorded statement, however, Ms. Orr 

stated that she saw Defendant draw a gun and pull the trigger. She said she was “one 

hundred percent sure” she saw Defendant pull the gun out and shoot at Mr. Wright and 

was “one hundred percent positive” that Defendant was the one who shot her. 

The trial court did not abuse its discretion by concluding that Ms. Orr’s recorded 

statement qualified as “reliable hearsay.” Defendant is not entitled to relief on this 

claim.2

 

2 We note that, in addition to Ms. Orr’s testimony, Detective Slaughter testified that he spoke 

with Ms. Orr, and she told him Defendant shot her and that she saw him with a gun. Detective Slaughter 

testified to these facts prior to the admission of Ms. Orr’s recorded statement, and Defendant has not 

attacked the admission of this testimony on appeal. Thus, even if the recorded statement was improperly 

admitted, it was cumulative to Detective Slaughter’s testimony. Admission of incompetent evidence that 

is cumulative of competent evidence is more likely to be found harmless. See State v. Lawrence Taylor

III, No. W2015-01693-CCA-R3-CD, 2016 WL 4576044, at *13 (Tenn. Crim. App. Aug. 31, 2016) 
- 19 -

b. Failure to provide the recorded statement to Defendant before hearing

Defendant argues that his right to due process was violated when the State failed 

to disclose the adverse evidence against him. He asserts that he did not receive the 

recorded statement prior to the revocation hearing. This claim, however, is not supported 

by the record. At the revocation hearing, trial counsel claimed that he had not been 

provided the statement, but the prosecutor was adamant that the State had provided the 

statement. Before a recess, the trial court instructed the State to provide to trial counsel 

“today whatever he doesn’t have[.]” Following the recess, trial counsel agreed that he 

had been provided discovery by the State in an email sent January 18, 2018, which 

presumably would have contained the victim’s statements to police. At best, it is unclear 

from the record whether the State provided Ms. Orr’s statement in advance of the 

revocation hearing. Defendant simply failed to create a record that would support his 

claim of a due process violation. He is not entitled to relief on this ground.

c. Hearsay within hearsay

Tennessee Rule of Evidence 805 provides that “[h]earsay within hearsay is not 

excluded under the hearsay rule if each part of the combined statements conforms with an 

exception to the hearsay rule provided in these rules or otherwise by law.” Tenn. R. 

Evid. 805. Defendant contends that Ms. Orr’s recorded statement contained hearsay 

within hearsay. He asserts that Ms. Orr had no independent recollection regarding the 

shooting and that she “was simply telling Detective Slaughter the story she had been told 

from other people about what happened.”

Upon review of Ms. Orr’s recorded statement, we conclude that she was not 

simply recounting what other people told her in regards to the key elements of her 

statement. Ms. Orr emphasized that she had seen Defendant, not simply heard that he 

was the individual who shot her, and Detective Slaughter specifically asked her about her 

basis for knowledge. Ms. Orr stated that she saw Defendant draw the gun and pull the 

trigger. She said that she was “one hundred percent positive” that she saw the Defendant 

pull the gun out shoot at Mr. Wright and that she was sure that Defendant shot her. Thus, 

any hearsay within hearsay statements contained in the recording would have had little

bearing on the trial court. The State directed the trial court’s focus to that part of the 

statement that was inconsistent with Ms. Orr’s testimony and said that it was only that 

portion that the State intended to play. There is no indication that the trial court gave 

undue weight to any part of the recorded statement it should have disregarded. 

Defendant is not entitled to relief on this claim. 

 

(“because the statement was cumulative of proof already in the record, if the trial court had erred when 

allowing the statement to be read into evidence, the error would be harmless”), no perm. app. filed.
- 20 -

d. Sufficiency of other proof

Finally, as noted by the State, Ms. Orr’s testimony at the probation revocation 

hearing that Defendant shot her was sufficient, “standing on its own, and viewed in the 

light most favorable to the State, to allow the trial court to make a conscientious and 

intelligent judgment.” Ms. Orr’s hearing testimony provided substantial evidence of a 

probation violation. The trial court was positioned to determine Ms. Orr’s credibility, 

and it was entitled to resolve any question about her credibility against Defendant.

3. Ineffective assistance of counsel

On appeal, Defendant contends that he was denied the effective assistance of 

counsel at the probation revocation hearing because trial counsel failed to realize before 

the hearing that the State had sent to his email, months prior, color photographs used in 

the photographic line-up shown to Ms. Orr. Defendant asserts that trial counsel’s 

ineffectiveness “deprived [Defendant] of his constitutionally granted right to have 

evidence disclosed to him prior to the probation revocation hearing[.]” 

This court has previously explained how an ineffective assistance of counsel claim 

relates to a probation revocation hearing, as follows:

[T]he right to counsel at a revocation of probation hearing is not guaranteed 

by either the Constitution of the United States or the Constitution of the 

State of Tennessee. Thus, the effectiveness of counsel at a revocation 

hearing is not a constitutional issue, except in those cases where the 

performance of counsel is so defective that another right which is 

constitutionally guaranteed at a revocation hearing is violated.

State v. Larry Ammons, No. W2001-00834-CCA-R3-CD, 2002 WL 1482675, at *4-5 

(Tenn. Crim. App. Mar. 18, 2002) (alteration in original) (quoting Richard Kiser v. State, 

Nos. 01C01-9503-CC-00071, 01C01-9503-CC-00082, 1995 WL 715510, at *3 (Tenn.

Crim. App. Dec. 6, 1995), no perm. app. filed), perm. app. denied (Tenn. Sept. 23, 2002). 

Even if a defendant can show deficient performance, he must still show prejudice. See 

State v. David W. Sonnemaker, No. E2003-01402-CCA-R3-CD, 2004 WL 483239, at *3 

(Tenn. Crim. App. Mar. 12, 2004) (“The Defendant admitted his failure to submit to 

DNA testing and could not, therefore, have been prejudiced by counsel’s deficient 

performance in not reading the [probation] violation report.”), perm. app. denied (Tenn. 

Oct. 11, 2004). 

Here, Defendant has failed to show that trial counsel’s performance was deficient. 

Trial counsel explained that he had seen “dark copies” of the photographs used in the 
- 21 -

photographic line-up prior to the probation revocation hearing. Although trial counsel 

failed to realize that an email from the prosecutor containing the color version of the 

photographs went to his spam email folder, trial counsel made the discovery during the 

first day of the probation revocation hearing. Before taking a recess, the trial court 

instructed the State to provide Defendant with a copy of the color photographs. Thus, 

Defendant was not denied the opportunity to see the proof against him.

Additionally, Defendant has failed to show that the result of the proceedings 

would have been different if trial counsel had seen the color photographs sooner. The 

record does not contain either the color photographs or the “dark copies” first seen by 

trial counsel. Thus, we are unable to conclude that Defendant was prejudiced by 

counsel’s alleged deficiency. Defendant is not entitled to relief on this claim. 

Conclusion

Based on the aforementioned reasons, we affirm the trial court’s decision to fully 

revoke Defendant’s probation. 

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE