IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 12, 2002 Session
STATE OF TENNESSEE v. BRIAN LEIDERMAN
Direct Appeal from the Circuit Court for Grundy County
No. 3561 Buddy Perry, Judge
No. M2001-01590-CCA-R3-CD - Filed March 26, 2002
The defendant was convicted in January 2001 of aggravated assault and sentenced to four years in
community corrections. Subsequently, while confined in the Grundy County Jail, he was charged
with assaulting another inmate, which generated a probation revocation warrant. Following a
hearing, the court revoked the community corrections sentence and ordered that he serve the
sentence imposed for his aggravated assault conviction. He appealed the revocation, arguing that
the evidence was insufficient to justify it and that his due process rights were violated because the
trial court did not provide in its revocation order a written statement as to the evidence relied upon.
We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.
Philip A. Condra, District Public Defender, and David O. McGovern, Assistant District Public
Defender, for the appellant, Brian Leiderman.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
The defendant, Brian Leiderman, was convicted of aggravated assault on January 25, 2001,
sentenced to four years, and placed into community corrections. He was arrested on March 6, 2001,
after the issuance of a probation revocation warrant alleging that he had again committed aggravated
assault, and confined in the Grundy County Jail. He was arrested again on June 4, 2001, following
the issuance of a second probation revocation warrant, charging that he had committed aggravated
assault on May 26, 2001, while confined in jail. A hearing was held on the second warrant on June
11, 2001, after which the court revoked his community corrections sentence and ordered that he be
confined for the sentence imposed for the January 25, 2001, aggravated assault conviction. In his
appeal, he presents the single claim that the trial court erred in revoking his community corrections
sentence based upon insufficient proof and in not providing a written statement of the evidence relied
upon. We affirm the revocation.
Grundy County Sheriff Robert Meeks testified that when he arrived at the jail on May 26,
2001, he was informed of the incident between the defendant and the victim. He observed that the
victim, James Stevens, had a “bruised face, facial lacerations, bruises.” Two photographs of the
victim were identified by the sheriff, who had taken them. They are exhibits in the appellate record
and appear to show that the victim had a laceration and bruising on the outside of his right eye.
The State’s second and final witness was the victim, James Stevens, who testified that he had
been arrested on May 26, 2001, for public drunkenness and confined at the Grundy County Jail. He
testified as to the assault:
Basically I was stooped down between the medium and
maximum security and I received several licks to the back of the
head, side of the head. I didn’t see who hit me there on the side of the
head. I was trying to get back to my feet and I received a kick in the
ribs and I saw that [the defendant] kicked me in the ribs and said,
“When you see Shannon remember that,” and that’s all I remember,
trying to get back to the front of the door.
The victim explained that “Shannon is a girl that I dated and [the defendant] also dated.” He
said that the kick, which “cracked” two of his ribs, was delivered ten to twenty seconds after he had
been struck in the head. He described his injuries as “my ear drum was swollen up. My jaw was
fractured, and two ribs were fractured, and a black eye, and a small concussion to the head.” The
victim said that the defendant kicked him, but he did not see the defendant strike him with his fists.
The victim said that as the incident was occurring, all of the other inmates were around.
During cross-examination, the victim said that some of the blows to his head were struck by
a “black arm.” He admitted that he had four felony convictions.
The defendant’s first witness was Robert Lee Canada, who, after the victim was pointed out
to him in the courtroom and before confessing that it was he who had “whooped”1 the victim,
confessed to a jail assault which, apparently, predated the instant matter:
A What that day, I heard a man say, Don’t slam the door no more,
so I stepped out of my cell. When I stepped out of my cell I seen a
guy by the name of, I call him RC, I don’t know his real name, I seen
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We presum e that “wh oop ed” is syno nym ous with “whipp ed.”
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RC slammed the dude head up against the wall. When he slammed
the guy’s head up against the wall, I seen the guy slide down. Blood
started running out his nose.
Q Okay. Are you thinking, sir, of Mr. Rackler? Is this another
incident? We’re talking about the one just within the last few weeks.
A Oh, the one I whooped?
Q Yes, sir.
A Show him to me. I just whooped one just about two weeks ago.
Q Okay. Could you explain to the Court what happened that day?
A What happened that day?
Q Yes. This is the recent one.
The witness then confessed to the assault on the victim:
A Oh, okay, you talking about on a Saturday. They brought this
man drunk. He’s sloppy drunk. Acted like he crazy. I don’t know
who he is. He walks up to my cell and say, “Hey, big black ‘un.”
I said, “Man, who you talking?” I’m lay there listening to my
radio. I said, “Man, who you talking?”
He said, “I’m talking to you.” He drunk.
I said, “Man, go on out about my cell.” I don’t know who he is.
I said, “Man, step back up by my cell.”
About that time my brother, Lee Canada, walks up. He said,
“Man, what’s going on here?”
I said, “Nothing.” I said, “Man, get out of my cell.” He walks
out of my cell, walking down the hall. I said, “Man, who you talking
to?”
He said, “I’m talking to you.” That’s when I hit him and knocked
him down. When I hit him and knocked him down I was stomping
him. I stomped him all the way to the back, in the drunk tank, where
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we use the bathroom at. Stomped him all the way out and 15 minutes
later after the police come back there and get him, they come get
Brian Leiderman right there and get him a warrant saying Brian
Leiderman whooped him. I told the police I whooped him.
Q Did Mr. Leiderman have any involvement in that scuffle that day
at all?
A The only thing, he was brushing his teeth, the only thing he told
me, said, “Man, leave him alone. Let him go.” Because I was fixing
to hurt him bad.
Q Mr. Leiderman told, Mr. Leiderman’s the one that made those
statements?
A Yeah, he said, “Let him go. Leave him alone.”
When asked on cross-examination if he had several felony convictions, Canada said that he
had “more than several . . . [a]bout 15 or 20” in fact. He testified that he had been jailed with the
defendant for “[e]ight months and something exactly.”
Mr. Canada then concluded his testimony with a query to the trial court:
A Can I ask you something, Judge?
THE COURT: What?
A What is the big issue about a man that got whooped over there at
that jail? I seen men get whooped in that jail and that ain’t no man
got no aggravated assault about it. I done whooped two or three in
that jail and they ain’t nobody give me no aggravated assault. What’s
so big a deal about that?
THE COURT: Not yet.
The defendant’s next witness was Escbira Lee Canada, the brother of Robert Lee Canada,
who said, as he described the incident, that the defendant had no involvement:
A Well, Brian was in the day room where I was playing dominos
and he called my brother the N-word and beat his ass.
Q Okay. You and Brian were doing what? I didn’t understand.
You and Brian were what now?
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A He was in the day room brushing his teeth and we’s playing
dominos. They was back there fighting. We was the ones that
stopped them.
Q Okay. Stopped what now?
A Stopped my brother from hitting him.
Q Okay. Was Mr. Leiderman that day involved in any fashion, did
you observe him in any way strike Mr. Stevens?
A No, he didn’t hit him at all.
Q Did you hit him?
A No, I didn’t hit him.
Q And when you say you tried to stop it, what did y’all specifically
do to try to stop it?
A Pulled my brother back.
Q And what was Mr. Leiderman’s involvement in that?
A He was just standing back, told them to stop it.
Q Who did he tell that to?
A He told Danny Wayne to stop them from fighting.
On cross-examination, he admitted that he had several felony convictions.
Danny Wayne Anderson, also an inmate at the Grundy County Jail, testified that, as he first
observed the incident, “[the victim] and Bug [Robert Lee Canada] was fighting.” He said that the
defendant’s only involvement was when he told Robert Lee Canada to “quit hitting on” the victim.
The defendant’s next witness was William Campbell, another inmate at the Grundy County
Jail. He said that he was talking on the telephone as the “scuffle” was going on and that the
defendant could not have been involved because he saw the defendant “up front away from where”
it was happening.
Ricky Dykes, another Grundy County Jail inmate, testified that he was in the “day room”
with the defendant when the incident occurred, and that the defendant was not involved. Dykes
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agreed upon cross-examination that he had several felony convictions and was still housed in the
same cell block with the defendant.
Michael Cash testified that he had been housed in the Grundy County Jail for about two and
a half months and had no prior felony convictions. He said that he was in the day room with the
defendant as the incident occurred and that “Bug,” rather than the defendant, was responsible. Cash
said that he had “picked up” the victim and taken him to the door for assistance. He estimated that
he would be housed at the Grundy County Jail for another nine or ten months.
James Caldwell, a jailer at the Grundy County Jail, said that he had been on duty when the
incident occurred but could not see who was involved. He testified that the victim had accused the
defendant and another inmate of the assault just after it had occurred.
The defendant then testified as the final witness, denying that he had injured the victim:
A They put Junior back there and I seen him come out there. I was
setting on a picnic table. They’s playing dominos and spades. I’s
brushing my teeth. I had an abscessed tooth. I was brushing my
teeth. All right. I seen him walk back to the back door, and he
walked back up and he stopped in Bug’s room, Robert Canada’s
room. Well, Robert, I don’t guess Robert knows him, and I don’t
know what went on there. He said, Robert asked him, said, “Who are
you talking to?”
He said, “I’m talking to you.” I just walked, I was standing at the
door. Like right here’s the gate and here’s the day room. I was
brushing my teeth, so I backed up off. I knowed what it was going to
be to start with. Robert and him, Robert knocked, hit him, started
stomping him.
Q Mr. Leiderman, did you involve yourself in that altercation?
A No. I told Danny Wayne, I said, “Just quit it.” You know what
I’m saying?
Q Danny Wayne?
A Danny Wayne Anderson was back there and when I went back
there I said, That’s enough, you know, that he don’t need no more.
Q Who were you telling that to?
A Robert.
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Q So when you said that what did you mean to say?
A Don’t kill him. He’s a piece of crap. Don’t kill him. He ain’t
worth going to the penitentiary over.
Q Are you running the jail down there? I mean, are you bossing
everybody around and telling everybody –
A I reckon Robert is.
Q But have you threatened any of these witnesses today?
A No.
Q Have you told them what to say?
A No.
Q Did you kick Mr. Stevens that day?
A No.
During cross-examination, the defendant explained that “Shannon” was his “ex-girlfriend,”
with whom he had a seven-year-old daughter. However, they had not had a relationship since he
“was about 15.” He estimated that Robert Lee Canada, whom he said was responsible for the
assault, was about 6’1”, 220 pounds. The defendant also told of his size and that of the victim,
explaining how the facts proved it had not been he who attacked the victim:
He’s probably 5-6 or 5-4. Probably weigh about 95 or 115
pounds. Me, I’m 6-2[.] I weigh 349, and I don’t know think [sic] it
takes three black guys and one white man to beat one man up. I think
if I was to stomp him or hit him, I think I would leave permanent
damage, you know, would be my guess. 349 pounds come down, I
believe it would be a little bit more than a cracked rib, so it’s just a
made up thing to send me on to the penitentiary.
Following the defendant’s testimony, the court made its findings:
I got to judge the credibility of the witnesses in this case and
make my conclusions about the believability or the lack of
believability, and the story I’m suppose to believe is 115 pound guy
just had the lack of judgment to stop by and pick on someone that
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obviously considers themself [sic] to be and probably is in old
country expressions, a tush hog. That’s just not credible.
Now, he got himself whipped. I’m not sure exactly why he got
himself whipped. I can’t draw the conclusions there, and find him
credible when he says that Mr. Leiderman, in fact, did kick him. I
don’t think Mr. Leiderman’s the one that started the whipping and
beat him up initially, but I think the proof is sufficient for me to
conclude that he joined in it.
....
I find that he’s violated the terms of Community Corrections and
I revoke him and order the sentence to be served in the Department
of Corrections. Draw an order, Counsel.
I. Sufficiency of the Evidence
The defendant argues that the proof, consisting of one inmate-victim versus six inmate-
witnesses and one inmate-defendant, was insufficient. However, for several reasons, we disagree.
First, we note that no theory was advanced as to why the 5’6”, 115-pound, at best, victim both would
deliberately challenge the 6’2”, 220-pound Robert Lee Canada, and then perjure himself to convict
the defendant. However, it is not difficult to envision why the defense inmate-witnesses would wish
to exculpate the 6’2”, 349-pound defendant, who had twice been charged, while incarcerated, with
assaulting other inmates: following their testimony they would be returning to the cellblock with
the defendant which might not be a happy prospect if they testified other than as they did. As for
the in-court confession of Robert Lee Canada that it was he, not the defendant, who had assaulted
the victim, it appeared that he was not concerned about being prosecuted for assault, as evidenced
by the fact that he confessed to two jail assaults. However, his lack of concern as to a future
prosecution may have been explained when he responded, “I ain’t fixing to discuss nothing about
my case in no courtroom,” when asked “[a]nd you’re currently being held on armed robbery charges
and you’ve got some homicide warrants on you out of Arkansas.” Accordingly, we cannot conclude
that the trial court erred in determining the proof showed that the defendant had violated the
conditions of his community corrections sentence.
II. Alleged Due Process Violation
The defendant also argues that his “fundamental due process rights were violated because
the trial court did not provide in its revocation order any written statement as to the evidence relied
upon to revoke him.”
As this court observed in State v. Merriweather, 34 S.W.3d 881 (Tenn. Crim. App. 2000):
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The legislature of this state has vested in the trial court sole authority
to grant suspension of sentences and probation to defendants. See
Tenn. Code Ann. § 40-35-303. Trial courts are also granted broad
authority to revoke a suspended sentence “at any time within the
maximum time which was directed and ordered by the court for such
suspension, after proceeding as provided in § 40-35-311 . . . .” Tenn.
Code Ann. § 40-35-310. The procedures outlined in Section 40-35-
311 are fundamental to our system of justice because a defendant
who is granted probation has a liberty interest that must be protected
by due process. See State v. Stubblefield, 953 S.W.2d 223, 225
(Tenn. Crim. App. 1997) (citing Practy v. State, 525 S.W.2d 677, 680
(Tenn. Crim. App. 1974)). The procedures for revocation of
probation mandated by our legislature have been determined by this
court to comply with federal constitutional standards as set forth in
the leading case of Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756,
36 L. Ed. 2d 656 (1973). See Practy, 525 S.W.2d at 682 (“This
State’s procedure for revocation of sentence suspension and probation
is an orderly one affording a probationer full protection of his
constitutional right to due process.”).
Id. at 884 (footnote omitted).
We have set out previously the oral findings made by the trial court at the conclusion of the
hearing. The probation revocation order states as follows, in pertinent part:
It appearing to the Court that the Defendant was sentenced to 4
yrs, but that the sentences was [sic] suspended and Defendant placed
on community corrections on 1-25-01, and it further appearing to the
Court that Defendant has violated the terms and conditions of said
probation by, new criminal conduct.
It is therefore ordered that the probation aforesaid be, and the
same is hereby revoked, and the Defendant is ordered to serve the
sentence in the custody of the Dept of Corrections and is given credit
for jail service from 1-25-01 until 6-11-01.
The defendant claims that this order does not satisfy the due process requirement of “‘a
written statement by the factfinders as to the evidence relied on and the reasons for revoking
probation or parole.’” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d
656, 664 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed.
2d 484, 499 (1972)). The reach of this holding was explained in Black v. Romano, 471 U.S. 606,
611-12, 105 S. Ct. 2254, 2258, 85 L. Ed. 2d 636, 643 (1985):
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Gagnon concluded that the procedures outlined in Morrissey for
parole revocation should also apply to probation proceedings. 411
U.S., at 782. Thus the final revocation of probation must be preceded
by a hearing, although the factfinding body need not be composed of
judges or lawyers. The probationer is entitled to written notice of the
claimed violations of his probation; disclosure of the evidence against
him; an opportunity to be heard in person and to present witnesses
and documentary evidence; a neutral hearing body; and a written
statement by the factfinder as to the evidence relied on and the
reasons for revoking probation. Id., at 786. The probationer is also
entitled to cross-examine adverse witnesses, unless the hearing body
specifically finds good cause for not allowing confrontation. Finally,
the probationer has a right to the assistance of counsel in some
circumstances. Id., at 790.
However, the fact that none of these opinions explain what form the “written notice” must
take has been the source for litigation in various jurisdictions. We note that “[t]he majority of courts
that have addressed this issue adopt the view that the transcript may substitute for the written
statement if the record includes the evidence relied upon and the reasons for the revocation.” Mihal
Nahari, Note, Due Process and Probation Revocation: The Written Statement Requirement, 56
Fordham L. Rev. 759, 772 (1988). Our review of applicable case law supports this statement. In
United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994), the court held:
One of the protections prescribed by Morrissey is “a written
statement by the factfinders as to the evidence relied on and reasons
for revoking parole.” 408 U.S. at 489, 92 S. Ct. at 2604. In this case,
the district court did not issue written findings of fact, but instead
stated from the bench the evidence it relied upon and the reasons for
its conclusion. Appellant contends that the district court's oral
statements do not satisfy due process because they are not written.
We join our sister circuits in concluding that oral findings, if recorded
or transcribed, can satisfy the requirements of Morrissey when those
findings create a record sufficiently complete to advise the parties and
the reviewing court of the reasons for the revocation of supervised
release and the evidence the decision maker relied upon.
Id. (citations omitted).
The rationale of allowing oral findings in a transcript of the hearing to satisfy the “written
statement” requirement was explained in State v. Elder, 36 P.3d 172, 174 (Co. Ct. App.), cert.
denied, ___ U.S. ___, 2001 Colo. LEXIS 1017 (2001):
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The purpose of requiring a “written statement” is to ensure
accurate factfinding with respect to any alleged violation and to
provide an adequate basis for review to determine if the decision rests
on permissible grounds supported by the evidence. Black v. Romano,
471 U.S. 606, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985). That
purpose is met where, as here, the trial court has made oral findings
on the record as to the grounds for the revocation and the basis of the
court's decision. See United States v. Daniel, [209 F.3d 1091 (9th
Cir. 2000) (amended 216 F.3d 1201)].
The position taken by the large majority of authorities considering this issue is reasonable.
We would elevate form over substance if we concluded that the trial court’s order revoking
community corrections would have been sufficient if it had simply incorporated the oral findings
made at the conclusion of proof, but that it was inadequate because it did not. Accordingly, we
conclude that where, as here, the transcript demonstrates the trial court provided adequate findings
at the conclusion of the probation revocation hearing showing both the grounds for the revocation
and reasons for the court’s findings, the due process requirement of a “written statement” is satisfied.
CONCLUSION
Based upon the foregoing reasoning and authorities, we affirm the judgment of the trial court.
___________________________________
ALAN E. GLENN, JUDGE
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