IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE v. ANDREW B. EDWARDS

Direct Appeal from the Criminal Court for Shelby County

No. 97-12105 W. Fred Axley, Judge

No. W1999-01095-CCA-R3-CD - Decided May 26, 2000

On May 26, 1998, the appellant, Andrew B. Edwards, pled guilty in the Shelby County Criminal

Court to the misdemeanor offense of assault. The trial court imposed a sentence of eleven months

and twenty-nine days in the Shelby County Workhouse and suspended all but thirty days of the

sentence, granting the appellant a term of probation. On November 16, 1998, the State filed a

petition to revoke the appellant’s probationary sentence. Following a hearing, the trial court granted

the State’s petition. The appellant now appeals the order of the trial court revoking his probation.

Following a review of the record and the parties’ briefs, we affirm the trial court’s judgment.

Tenn. R. App. P. 3; Judgment of the Criminal Court is affirmed.

OGLE, J., delivered the opinion of the court, in which WADE, P.J., and WILLIAMS, J., joined.

Charles A. Sevier, Memphis, Tennessee, for the appellant, Andrew B. Edwards.

Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney General, Julie

Mosley, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On November 16, 1998, the State filed a petition to revoke the appellant’s

probationary sentence on the ground that the appellant had violated “the laws of the United States

or any State . . . ,” thereby violating a condition of his probation. Specifically, the State noted that

the appellant had been arrested on October 5, 1998, for aggravated assault. Pursuant to the State’s

petition, the trial court conducted a probation revocation hearing on May 25 and 28, 1999. At the

hearing, the State presented the testimony of Tiffany Walker, the appellant’s probation counselor.

She confirmed that, during the appellant’s probationary period, he had been arrested for aggravated

assault. The State also presented the testimony of Sandra McClain, an employee of the Shelby

County Criminal Court responsible for maintaining the court’s records. Ms. McClain confirmed

that, on April 1, 1999, a Shelby County Grand Jury had indicted the appellant for committing the

offense of aggravated assault on August 30, 1998.
-2-

Following the State’s presentation of proof, the appellant presented the testimony of

several witnesses to the August 30, 1998 altercation. First, Joey Gaia testified that, on August 30,

1998, he was attending a party when he and another guest, Eric Hall, began to fight. After the two

combatants inflicted several minor injuries upon one another, they decided to end the fight, and Mr.

Gaia and several friends decided to leave the party. At this point, the appellant emerged from “a

crowd of people” wielding a knife and began to walk toward one of Mr. Gaia’s friends. Mr. Gaia

recounted:

I looked at [the appellant] and said, Hey, man, chill out, we’re leaving

right now. And then next thing I know, he comes up, approaches me,

and next thing I know, I’m cut.

Eric Hall also testified on behalf of the appellant at the probation revocation hearing

and confirmed that he attended the August 30, 1998 party. According to Mr. Hall, Mr. Gaia

provoked a fist fight with him, after which fight Mr. Hall immediately left the party. As he left, he

heard someone asking everyone to leave. Michael Boyd, another guest at the party, testified that,

following the fight between Mr. Hall and Mr. Gaia, the appellant asked the combatants to leave.

According to Mr. Boyd, Mr. Gaia refused to leave, and he and several friends began to advance

toward the appellant wielding broken beer bottles. The appellant then drew a knife and again asked

Mr. Gaia and his companions to leave. Mr. Gaia attempted to grab the appellant’s knife and was cut

by the knife during the struggle. Blake Atkins, yet another guest, also testified that Mr. Gaia was

the aggressor during the confrontation between Mr. Gaia and the appellant. Finally, the appellant

testified and confirmed Mr. Boyd’s and Mr. Atkins’ account of events on the evening of the party.

Following the parties’ presentation of proof, the trial court concluded that it was

bound by the grand jury’s finding of probable cause that the appellant committed the August 30,

1998 aggravated assault and, accordingly, revoked the appellant’s probation. In reaching this

conclusion, the trial court relied upon, among other cases, Parton v. State, 455 S.W.2d 645 (1970).

Finally, the trial court opined, “Frankly, from what I heard factually, . . . the grand jury did not

improperly indict him for what he’s charged with . . . .”

II. Analysis

The appellant contends that the trial court erred in concluding that it was bound by

the grand jury’s finding of probable cause that the appellant committed the August 30, 1998

aggravated assault. We agree. The cases cited by the trial court in support of its conclusion, in

particular Parton, 455 S.W.2d at 648, stand only for the proposition that a court may not dismiss an

indictment on the ground that there was inadequate or incompetent evidence before the grand jury

to support the indictment. See also State v. Gonzales, 638 S.W.2d 841, 845 (Tenn. Crim. App.

1982). Rather, if the indictment is valid on its face, a trial court must proceed to a trial of the charge

on the merits. Id. These cases do not address the use of an indictment to establish the merits of the

charge contained therein, whether in probation revocation proceedings or any other proceedings.

In the context of probation revocation proceedings, a trial court may revoke a

defendant’s probation whenever it finds that the probationer has violated the conditions of probation.
-3-

See Tenn. Code Ann. § 40-35-310 (1997). Prior to revocation, however, a trial court must “inquire

into the charges . . . and at such inquiry, the defendant must be present and is entitled to be

represented by counsel and has the right to introduce testimony in the defendant’s behalf.” Tenn.

Code Ann. § 40-35-311(b) (1997). Indeed, because a defendant’s conditional freedom from

incarceration is at risk in a probation revocation proceeding, the defendant is entitled by the state and

federal constitutions to some quantum of due process. State v. Wade, 863 S.W.2d 406, 408 (Tenn.

1993). See also State v. Ozier, No. W1999-01478-CCA-R3-CD, 2000 WL 351375, at *2 (Tenn.

Crim. App. at Jackson, April 4, 2000). Specifically, a defendant is entitled to the following

procedures:

(1) written notice of the claimed violation of probation;

(2) disclosure to the probationer of the evidence against him;

(3) an opportunity to be heard in person, to present witnesses, and to

introduce documentary evidence;

(4) the right to confront and cross-examine adverse witnesses (absent

good cause for not allowing confrontation and the reliability of the

proffered evidence);

(5) a “neutral and detached” tribunal; and

(6) a written statement by the finder of fact as to the evidence relied

on and the reasons for revocation.

Wade, 863 S.W.2d at 408 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-1762

(1973)). Moreover, while the trial judge need not find beyond a reasonable doubt that a violation

of the conditions of probation has occurred, the existence of a violation must be supported by a

preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d). In other words, the record on

appeal must demonstrate that the trial judge has not acted arbitrarily and has exercised conscientious

judgment. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Gregory, 946 S.W.2d 829, 832

(Tenn. Crim. App. 1997).

That having been said, pending charges can be the basis for a revocation of probation.

State v. Proffitt, No. 03C01-9901-CR-00026, 1999 WL 817663, at *2 (Tenn. Crim. App. at

Knoxville, October 11, 1999). However, a trial court may not rely upon the mere fact of an arrest

or an indictment to revoke a defendant’s probation. Harkins, 811 S.W.2d at 83; State v. Crites, No.

01C01-9711-CR-00512, 1999 WL 61053, at *3 (Tenn. Crim. App. at Nashville, February 9, 1999);

State v. Ellison, No. 01C01-9708-CR-00361, 1998 WL 272955, at *2 (Tenn. Crim. App. at

Nashville, May 29, 1998); State v. McDonald, No. 01C01-9102-CC-00032, 1992 WL 92949, at *3

(Tenn. Crim. App. at Nashville, May 7, 1992). First, sole reliance by the State and the trial court

upon a grand jury indictment in order to establish the defendant’s commission of a crime during the

probationary period denies a defendant the minimum requirements of due process in probation

revocation proceedings. Second, “[a]n indictment is based upon probable cause . . . whereas the

standard for revocation is preponderanceof the evidence.” Crites, No. 01C01-9711-CR-00512, 1999

WL 61053, at *3. Third, testimony concerning a defendant’s indictment for an offense does not

afford a trial court sufficient information upon which it may make a conscientious and intelligent

judgment. McDonald, No. 01C01-9102-CC-00032, 1992 WL 92949, at *3. Thus, the State “must

produce evidence in the usual form of testimony” in order to establish the probationer’s commission

of another offense. Ellison, No. 01C01-9708-CR-00361, 1998 WL 272955, at *2.
-4-

Our conclusion that the trial court erred in relying upon the petitioner’s indictment

for aggravated assault in revoking the appellant’s probation does not, however, entitle the appellant

to relief. We note that, at the probation revocation hearing, the appellant himself produced “evidence

in the usual form of testimony” instead of standing upon any objection to the State’s and the trial

court’s reliance upon his indictment for aggravated assault. Accordingly, as noted earlier, the trial

court was also able to observe that the evidence adduced by the appellant supported the grand jury’s

action. In other words, the trial court found probable cause to believe that the appellant had

committed the offense of aggravated assault, thereby accrediting the testimony of Mr. Gaia.

Deferring to the trial court’s assessment of Mr. Gaia’s testimony, State v. Mitchell, 810 S.W.2d 733,

735 (Tenn. Crim. App. 1991), we conclude that the evidence also preponderates in favor of the

appellant’s guilt of aggravated assault during his probationary period and that any error by the trial

court was harmless. See, e.g., State v. Conner, No. 02C01-9807-CR-00201, 1999 WL 1095649, at

*2 (Tenn. Crim. App. at Jackson, October 31, 1999).

III. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.