Eddie Howard v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1997 March 12, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9604-CC-00167 ) Appellee, ) ) HAMBLEN COUNTY VS. ) ) HON. JAMES EDWARD BECKNER EDDIE L. HOWARD, ) JUDGE ) Appe llant. ) (Direct Appeal - Sale of ½ gram or ) more of Cocaine)

FOR THE APPELLANT: FOR THE APPELLEE:

PAUL G. WHETSTONE, P.C. JOHN KNOX WALKUP 502 North Jackson Street Attorney General and Reporter Morristown, TN 37814 TIMOTHY F. BEHAN Assistant Attorney General 425 Fifth Avenue N. Nashville, TN 37243

C. BERKELEY BELL District Attorney General

JOHN DUGGER Assistant District Attorney 510 Allisto n St. Morristown, TN 37814

OPINION FILED ________________________ AFFIRMED; SENTENCE MODIFIED

JERRY L. SMITH, JUDGE

OPINION On November 29, 1995, a Ham blen C ounty jury con victed A ppella nt Edd ie

L. Howard, Jr., of four counts of selling .5 or more grams of a Sch edule II controlled substance. After a sentencing hearing on the same day, the trial court imposed a sentence of nine years for each conviction, with two of the sentences to be served consecutively. Appellant challenges both his convictions a nd his sentences, raising the following issues:

1) wheth er the S tate es tablish ed a p roper chain of custody for the cocaine that was introduced into evidence; 2) whether the trial court erred when it admitted audio tapes, video tapes, and transcripts into evidence; 3) whether the trial c ourt er red wh en it faile d to inc lude c ertain ju rors in Appellant’s venire; 4) whether the referral to Appellant as a “deale r” by a witne ss for the S tate prejud iced A ppella nt to the extent th at he d id not re ceive a fair trial; 5) whether the trial court imposed excessive sentences; and 6) whether the trial court erred when it ordered two of the sentences to run consecu tively.

After a review of the record, we affirm the judgm ent of the tria l court but m odify the se ntenc es to ru n con curren tly

I. FACTS

Detective Wayne Mize of the Morristown, Tennessee Police Department testified that on April 21, April 24, April 26, and May 5, 1995, he and some other police officers made audio and video recordings of transactions in which Appellant sold cocaine base to police informant Connie Cervino during an undercover operation. Mize testified that before each of the four transactions, police officers would enter Cervino’s apartment, give Cervino $200.00, and then set up an d turn o n aud io and video recording devices. The officers would then

-2-position themselves outside of Cervino’s apartment in order to photograph Appellant as he entered and exited the apartment. When the officers le ft the apartment, Cervino would call Appellant and ask him to deliver cocaine to her apartm ent. When Appellant arrived, he would put the cocaine on the coffee table and Cervino wou ld pay him $2 00.00. After A ppellant left the apartment, the officers would wait for five to ten minutes and then would re enter the apartm ent. Either Detective Mize or Officer Dan Cox would then take possession of th e cocaine . The office rs would then turn off the reco rding de vices.

II. CHAIN OF CUSTODY

Appellant contends that the trial court s hould have g ranted his motion for judgment of acquittal because th e State failed to establish a proper chain of custody for the cocaine that was introduced into evidence. Sp ecifically, Appellant claims that a proper chain of custody was not established because the proof shows that Cervin o had “multip le opp ortunitie s” to “tam per with [the] evid ence in any mann er [that] she pleased ” before th e police o fficers took posse ssion of it. We disagree.

Before tangible evidence may be introduced, the party offering the evidence must either c all a witn ess w ho is a ble to identify the evidence or must establish an unb roken c hain of cu stody. State v. Holloman, 835 S.W.2d 42, 46 (Tenn. Crim . App. 1 992). H owev er, “[t]he identity o f tangib le evidence need not be proven beyond all possibility of d oubt, an d all poss ibility of tampering need not be excluded.” Id. Rather, “[i]t is sufficie nt if the fa cts est ablish a reas onab le assurance of the identity of the evidenc e.” State v. Woods, 806 S.W.2d 205, 212

-3-(Tenn. Crim . App. 1990). “Whether the required chain of custody has been sufficie ntly established to justify the admission of evidence is a matter committed to the sound discretion of the trial court, and the court’s determination will not be overturned in the absence of a clearly m istaken e xercise o f that discre tion.” Holloman, 835 S.W.2d at 46.

Appellant does not ch alleng e the c hain of custody for the cocaine after the time that Detective Mize and Officer Cox took possession of it. Instead, Appellant contends that the chain of custody was not established because Cervino did not testify at trial and because the video tapes of the four transactions show that Cervino had multiple opportunities to tamper with the cocaine before Mize and Cox took possession of it. We have reviewed the four vide o tape s, and we co uld see no instance in which Cervino appeared to tamper with the evidence. Although Cervino did not testify at trial, her link in the chain was sufficiently established by the video and audio tapes, the testimony of Detective Mize, and the testimony of Officer Cox. See id. (stating that un availab le witne ss’ link in the chain was sufficiently established by testimony of other witnesses). This issue has no merit.

III. ADMISSIBILITY OF TAPES AND TRANSCRIPTS

Appellant conte nds th at the tria l court e rred w hen it a dmitte d the a udio tapes, video tapes, and tran scripts into evidence. Specifically, Appellant argues that because the tapes and transcripts contain statements made by Cervino and Cervino did not testify at trial, admission of this evidence violated his right to

-4-confrontation under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.1 We disagree.

In State v. Jones, 598 S.W .2d 209, 223 (Tenn. 1980), the Tennessee Supreme Court held that an accused’s constitutional right to confront the witnesses against him was not violated by the introduction of audio taped conversations between the accused and a n inform ant wh o did n ot testify a t trial. The supreme court stated that

tape recordings and compared transcripts are admissible and may be presented in evidence by any witness who was present du ring the ir recording or who monitored the conversations, if he was so situated and circumstanced that he was in a position to identify the declarant with certainty, and p rovide d his te stimo ny in wh ole, or in part, comp orts with other rules of evidence.

Jones, 598 S.W .2d at 223 .

In this cas e, De tective Miz e testified that he could identify Appellant and Cervino in all four video tapes. Mize also tes tified that he had monitored the audio recording of the transactions on April 24, April 26, and May 5 while they were occurring and he had reviewed the transcripts of those recordings and determined that they were accurate. In addition, Officer Cox testified that he had monitored the audio recording on April 21 and he had reviewed the transcript and determined that it was accurate. Further, Officer Rick Harmon testified that he photographed Appellant when he entere d and exited C ervino ’s apa rtmen t on all four occasions and he identified A ppella nt in the photo graph s. Only after this

1 The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be con fronted w ith the witnes ses ag ainst him .” U.S. Co nst. am end. VI. Sim ilarly, Article I, Section 9 provides “[t]hat in all criminal prosecutions, the accused hath the right to . . . meet the witnesses face to face.” Tenn. Const. art I, § 9.

-5-testimony was g iven were the juro rs allow ed to lis ten to p ortions of the a udio tapes while they simultaneously watched the soundless video tapes of the four transac tions. We conclude that this procedure satisfied the requirements set forth in Jones. More over, C ervino ’s statem ents we re not offer ed or inten ded to be subs tantive eviden ce. Ind eed, C ervino ’s state men ts are c omp letely insignificant except to the exten t that they pu t Appella nt’s record ed statem ents in context. In effect, Cervino was simply not a “witness against” Appellant, and thus, the right to c onfronta tion is not im plicated. See State v. George Harless, No. 03C01-9203-CR-00105, 1993 WL 305786, at *3 (Tenn. Crim. App., Knoxville, Dec. 6, 1993). Appellant’s right to confrontation wa s fully sa tisfied b y his thorough cross-examination of Detective Mize , Officer Cox, and Officer Harmon. See id. This issu e has n o merit.

IV. JURY SELECTION

Appellant contends that the trial court erre d when it denied h is motion to have jury pan el one included in his venire. Specifically, Appellant argues that because he is African-American and panel one w as the only panel that included African-American mem bers, th e trial co urt’s failure to purposefully include panel one in Appellant’s venire deprived him of his right under Article I, Section 8 of the Tennessee Constitution2 to be tried by a jury of his peers. We disagree.

The record indicates that when Appellant made his rather unique motion, the trial court stated that to purposefully include the panel containing African-

2 Article I, Section 8 provides “[t]hat no man shall be taken or imprisoned . . . but by the judgment of his peers.” Tenn. Const. art I, § 8.

-6-Americans would be just as ba d as to purpo sefully e xclude the pa nel. Thus, the trial court concluded that the better p ractice would be to p ut the n umb ers of a ll perspective jury panels in a box and then have the clerk draw the numbers at random. Jury panel one was not selected.

W e conclude that the trial court’s procedure in s electin g the ju ry in this case did not violate Appellant’s right to be tried by a jury of his peers in any way whatsoeve r. Indeed, Tennessee courts have repeatedly held that although “juries must be drawn from a source fairly representative of the community[,] we impose no requ iremen t that petit juries actually chosen must mirror the comm unity and reflect the various distinctive group s in the population .” State v. Nelson, 603 S.W.2d 158, 160 (Ten n. Crim . App. 1980) (quoting Taylor v. Louisiana, 419 U .S. 522, 5 38, 95 S .Ct. 692, 7 02, 42 L .Ed.2d 6 90 (197 5)); see also Harvey v . State, 749 S.W.2d 478, 481 (Tenn. Crim. A pp. 198 7). In short, there is no constitutional guarantee requiring a defendant be tried by a jury wholly or partially composed of individuals of his or her own race. Harvey, 749 S.W.2d at 481 (citing Wh eeler v. Sta te, 539 S.W.2d 812 (Tenn. Crim . App. 1 976)) . This issue ha s no m erit.

V. IMPROPER COMMENT BY A STATE WITNESS

Appellant contends that he was prejudiced to the point that he did not receive a fair trial when Officer H armon referred to Appellant as a “dealer” during his testimony. We disagree.

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The record indicates that during the direct examination of Officer Harmon, the following colloquy occurred:

[MR. DUG GER ]: Appro ximately h ow long did [App ellant] stay in the apartm ent? You were outside watching him go in and out; how long did he stay? [OFFICER HARMON]: Just a couple minutes. Just like the rest of the dealers that we dealt with— MR. W HETS TON E: Objection, you r Honor. THE COU RT: S ustained . Be care ful.

Harm on’s statement was undoubtably improper. However, we conclude that Appe llant is no t entitled to a new trial because of it. In State v. S mith, 893 S.W.2d 908, 92 3 (Ten n. 1994 ), the Tenn essee Supre me C ourt held that a witness’ improper reference to the defendant’s prior jail time did not entitle the defendant to a ne w trial because the trial court had given a curative instruction and in addition, the defendant could not have been prejud iced by the rem ark given the ove rwhelm ing proof of guilt. Similarly, in State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987), this Court held that a witness’ improper reference to the accused’s prior criminal record d id not entitle th e accu sed to a new trial because the trial court had given a curative instruction and further, the evidence in the record overwhelmingly established the guilt of the accused. Although these decisions were based in part on the giving of curative instructions by the trial courts, we note that Appellant failed to ask for a curative instruction in this case. Further, we note that Harmon’s brief comment was not solicited by the State an d it was no t repeate d. Moreo ver, given the overwhelming proof of Appe llant’s guilt that was p resen ted at tria l, any error w as clearly h armles s. See Tenn. R. App. P. 36(b) (stating that eve n if app ropria te, relief s hall not be granted “unless, considering the whole record, error involving a substantial right m ore probab ly than no t affected th e judgm ent”). This issue ha s no m erit.

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VI. LENGTH OF SENTENCES

Appellant contends that the trial court erroneously sentenced him to a longer term than he deserves for each of his four convictions. We disagree.

“When reviewing senten cing issu es . . . including the granting or denial of probation and the length of sentence, the appellate co urt shall conduc t a de novo review on the record of such issues . Such review shall be conducted with a presumption that the determinations made by the co urt from which the ap peal is taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the presum ption of correc tness which acco mpa nies th e trial co urt’s ac tion is conditioned upon th e affirma tive show ing in the re cord tha t the trial court considered the sentencing principles and all rele vant facts a nd circum stance s.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider all the evidence, the presentence report, the sentencing principles, the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s statements, the nature and character of the offense, and the defendant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp. 1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of demonstrating that the sentenc e is imprope r.” Id. Because the record in this case indica tes tha t the trial c ourt pr operly considered the sentencing principles and all relevan t facts a nd circ ums tance s, our re view is d e novo with a presumption of correctness.

In this case, App ellant was con victed of four coun ts of selling .5 or more grams of a Schedule II controlled substance, a Class B felony. See Tenn. Code

-9-Ann. § 39-17-417(c)(1) (Supp. 1998). The sentence for a Range I offender convicted of a Class B felony is between eight and twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (1997). When both enhancement and mitigating fac tors are applicable to a senten ce, the court is directed to begin with the minimum sentence, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors. Tenn. C ode Ann . § 40-35-210 (e) (1997).

In sentencing Appellant to a term of nine years for each conviction, the trial court determined that enhancement factor (1) applied because Appellant had a history of crimina l conviction s or beh avior in add ition to those neces sary to establish the appropriate sentencing range. See Tenn. Code Ann. § 40-45-114(1) (1997). The trial court also determ ined that none of the enum erated mitigating factors of T ennes see Co de Ann otated se ction 40-3 5-113 a pplied.

Initially, Appe llant contends that the trial court erred when it applied enhancement factor (1). We disagree. The record indicates that Appellant had previous convictions fo r driving without a driver’s license in Tennessee and for retail theft in Illinois. Thus, the trial court properly applied this enhancement factor.

Appellant also contends that the trial court should have applied mitigating factor (1) because his criminal conduct neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-3 5-113(1) (199 7). Howeve r, this Court has held th at this fa ctor is in applic able in case s involving the sale of cocaine. State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim. App. 1994). Even if this factor

-10-had been applied, it would have been entitled to little we ight. See State v. Hoyt Edward Carro ll, No. 03C01-9607-CC-00254, 1997 WL 457490, at *4 (Tenn. Crim App., Knoxville, Aug. 12, 1997) (holding that in cases involving drugs, mitigating factor (1) is entitled to little weight).

Appellant further contends that the trial court should have applied mitigating factor (13) becau se he is th e father o f an infant s on. See Tenn. Code Ann. § 40-35-113(13) (1997). We are unpersuaded that the mere fact that Appellant has fathered a child is entitled to any mitigating weight. See State v. John Allen Chapman, No. 01C01-9604-CC-00137, 1997 WL 602944, at *21 (Tenn. Crim. App., Nashville, Sept. 30, 1997) (“We find no nexus between paternityship and mitigation of punish ment.”).

In our de novo re view, w e hold that one enhancement factor and no mitigating factors apply to Appellant’s sentences. Thus, we hold that a sentence of nine years for ea ch of A ppella nt’s co nviction s is entir ely app ropria te in this case.

VII. CONSECUTIVE SENTENCING

Appellant conten ds that the trial court erred when it orde red two of his sentences to be s erved cons ecutively. On th is issue w e mus t agree w ith Appe llant.

In gene ral, con secu tive sen tencin g ma y be im pose d in the discretion of the trial court up on a de termina tion that on e or mo re of the follo wing criteria exist:

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(1) The defendant is a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood; (2) The defen dant is an offe nder w hose record of crim inal ac tivity is extensive; (3) The defen dant is a dangerous mentally abnormal person so declared by a com peten t psych iatrist wh o con clude s as a r esult of an investigation prior to sentencing that the defendant’s criminal conduct has been characterized by a pa ttern of r epetitive or comp ulsive beh avior with heedless indifference to consequences; (4) The defendant is a dangerous offender whose beha vior indic ates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time spa n of defenda nt’s undetected sexual activity, the nature and sco pe of the se xual ac ts and the exte nt of the residu al, physical and mental damage to the victim or victims; (6) The defendant is sentenced for an offense committed while on probation; or (7) The defend ant is sen tenced for crimina l contem pt.

Tenn. C ode Ann . § 40-35-115 (b) (1997). 3

In determining that two of Appellant’s sentences should be served consecu tively, the trial court found that Appellant is “a professional criminal who has knowingly devoted himself to criminal acts as a major source of livelihood.” The trial court stated that it based this finding on evidence that during the time period when the four offenses at issue in this case were committed, almost all of Appe llant’s incom e cam e from th ese fou r drug tran sactions .

3 In State v. Wilkerson, 905 S.W .2d 933, 937–38 (Ten n. 1995), the Tennesse e Suprem e Court imposed two ad ditional requirements for consecutive sentencing— the court must find that consecu tive sentences are reaso nably related to the severity of the offenses com mitted and that consecutive sentences are necessary to protect the public from further criminal conduct. At this time, it is unsettled whether Wilkerson applies to all seven of the statutory categories for consecutive sentencing or only the “dange rous off ender” c ategory. See State v. David Keith Lane, No. 03C01-9607-CC-00259, 1997 WL 33206 1, at *6 (Te nn. Crim . App., Kn oxville, June 18, 1997 ), perm. app. granted, (Tenn. 1998). Our determination that consecutive sentences are not appropriate in this case is the same under either interpretation.

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W e conc lude th at the re cord s imply d oes n ot sup port the trial court’s finding that Appellant is “a professional criminal who has knowingly devoted hims elf to crimina l acts as a major source of livelihood.” As previously stated, Appellant’s prior criminal record consists only of one prior conviction for retail theft in Illinois and one or pos sibly two convic tions fo r driving withou t a licen se in Tennessee. The record also indicates that in committing these offenses, Appellant mere ly obtain ed po sses sion o f a bas ketba ll and a batting glove. It goes without saying that these two items cannot be considered a major source of Appellant’s livelihood by any stretch of the imagination. Further, there is abso lutely no evidence in the record that Appellant has ever obtained anything of value through any other criminal offenses for which he was not convicted. The trial court apparently concluded that because Appellant was only earning $25–50 per week at his jo b, App ellant must have been obtaining his livelihood almost entirely through crimina l activity. W hile this theory may w ell have been true, it remains only a theory because it was not supported by any evidence in the record. In short, we hold tha t the record doe s not suppo rt a finding that Appellant is a “professional criminal” such as to warrant consecutive sentences.

According ly, Appellant’s sentences are modified to provide for concurrent sentencing for all four convictions in this case. In all other respects, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

-13-CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE

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