IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH SESSION , 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9710-CR-00405 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. L.T. LAFFERTY GEORGE ROSE, ) JUDGE ) Appe llant. ) (Direct Appe al - Posses sion of ) Controlled Substance)
FOR THE APPELLANT: FOR THE APPELLEE:
TONY N. BRAYTON JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 201 Poplar, Suite 2-01 Memphis, TN 38103 DOUGLAS D. HIMES Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
WILLIAM L. GIBBONS District Attorney General
CHARLES W . BELL Assistant District Attorney 201 Poplar Avenue - Third Floor Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION Appellant George S . Rose wa s convicted on April 16, 1997 b y a jury in the
Shelby Coun ty Crim inal Co urt of po sses sion o f a con trolled substa nce, to wit: cocaine, with intent to sell. As a Range I standard offender, Appellant was sentenced to 210 days incarceration in the Shelby County Correctional Center and five years probation. The trial court also imposed a $2,000.00 fine. Appellant presents the following issue for our consideration on this direct appe al: whether the trial court denied Appellant his constitutional right to trial by jury by refusing to instruct the jury on the lesser included offense of simple possession of a controlled substance or casual exchange.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
The proof shows that during the evening of July 20, 1995, the Organized Crime Unit of the Memphis Police Department conducted a "buy-bust" drug operation directed at apprehending street-level drug dealers. The focus of this particular operation was the Whitehaven area, specifically, Shelby Drive and Hodge in Memphis.
Officer Michael Hardy testified at trial that he posed as the decoy officer on July 20. Officer Hardy marked approximately $100.00 in "buy money" by writing his initials in the corner of the bills.
At approximately 8:15 P.M., Officer Hardy was parked at the corner of Shelby and Hodge. He testified that he motioned to a black female--later determined to be Edna Strickland--to his car. After Strickland approached the automobile, Officer Hardy inform ed her that he wanted to pu rchase a twe nty-
-2 -dollar rock of coca ine. Ms. Strickland re plied that she kne w where to get it and stepped into the car. She d irected Hard y to 4503 Neeley Road in Memphis. Hardy testified that he handed Strickland twenty dollars of marked buy money consisting of one ten -dollar bill and two five-dollar bills. At approximately 8:20 P.M., Strickland got out of the car and walked up to a window of the house. Ms. Strickland knocked on the window, and a black male answered her knock, appearing at the window. At trial, Officer Hardy identified Appellant as the same person who appeared inside the house at the window. According to Officer Hardy, Appellant wo re a white T-sh irt and d ark pa nts on the eve ning o f July 20. Officer Hardy recalled that Appellant op ened the w indow and engaged in a short conversation with Ms. Strick land. After the conversation, Appellant walked away from the window for a short time. Upon returning, Appellant handed Strickland the cocaine, and she gave Appellant the twenty dollars. Ms. Strickland returned to the automobile. Officer Hardy testified that he never lost sight o f Strickla nd's clasped hand conta ining th e obje ct given to her b y App ellant. Once inside the vehicle, Strickland gave Hardy a white rock-like object. Officer Hardy drove down the road a short distance and gave the "take-d own" signal. Su pport officers immed iately arrived at the hous e and Ha rdy's car.
On cross-examination, Officer Hardy testified that the distance between his vehicle and the house was ap proxima tely fifty feet. Moreover, he stated that he had an unobstructed side view of the transaction and that ample daylight enabled him to see cle arly. Hardy conce ded tha t he could not see th e item which Appellant placed into Ms. Strickland's hand but reiterated that he never lost sight of her hand after Appellant put the object into it. Officer Hardy stated that the buy money was recovered from Appellant and was later reused.
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Detective Byron Hardaway testified that he was a "take-down" officer at the Neeley Road address on the evening of July 20, 1995. Hardaway explained that the take-down officer's responsibility is to locate and detain suspects after the decoy officer g ives the take-d own s ignal. After Officer Hardy gave the take-down signa l, Hardaway and other officers approached the Neeley Road residence. Officer Hardy had described Appellant over the radio as a black male with a shoulder length jheri-curl and wearing a white T-shirt. Detective Hardaway knocked on the door, and Appellant's mother, Ruthie Rose, answered the door and let in Hardaway and the other officers. At this time, Appellant was walking down the hall behind his mother. The officers took Appellant outside, and Detective Hardawa y recovered the buy mo ney from Appella nt's right fron t pocket. At this time, Appellant wore jogging pants.
Detective Hardaway testified on cross-examination that he and the other officers arrived at the house within one to two minutes follo wing the take-down signa l. He stated that it was still daylight when he and the othe r officers arrived but that it was getting dark. Detective Hardaway saw o nly Ap pellan t, Appe llant's mother, and a younger boy inside the home. Hardaway explained that he did not search Appella nt's bedro om be cause it was so filthy. He returned the buy money to Officer Hardy. Detective Hardaway identified Appellant as the individual arrested at 4503 Neeley Road.
Officer Phillip Fun derbu rk state d that h e was a take -down officer o n this particular occasion. Funderbu rk testified that several m oments p assed be fore anyone opened the door. Appellant's mother finally answered the door, and Appellant and a younger boy stood behind her. Appellant matched the description of the person who made the exchange with Ms. Strickland. He had a jheri-curl and wore a white T-shirt. Officer Fu nderburk testified that once
-4 -outside, Detective Hardaway performed a pat-down search of Appellant and recovered the buy money containing Officer Hardy's initials.
On cross-examination, Officer Funde rburk testified that Ms. Ruthie Rose consented to a search of her son's bedroom. The search lasted for approximately five to ten minutes.
Officer Preston Morton testified that he was in charge of the holding and testing of evidence. Officer Hardy took the rock-like object to Officer Morton in the testing van. Officer Hardy watched as Morton performed a Ferguson field test on a portion of the suspected crack cocaine. The test revealed the substance to be cocaine. Subsequently, the substance was sent to the University of Tennessee Toxicology La boratory for further an alysis. Fried a Saha rovici, a professional chem ist, testifie d that a nalysis revealed the substance to be condensed cocaine in its free base form.
Ms. Ruth ie Ros e, App ellant's mother, testified tha t five individuals were inside the residence on July 20, 1995 when the police knocked on the door. These five pe ople were herself; her husband, George Rose, Sr.; Appellant; her grandson, Spence r Miller (also known as "Darrell"); and Appellant's friend, Nathaniel Turner (also known as "Main") . According to M s. Rose's testim ony, Appellant answered the door, and the police entered the residence and searched Appe llant's room without permission. One of the officers stated that he had found something and walked from the bedroom carrying a bag of lye soap. She denied that drugs were being sold from her residence.According to Ms. Rose, Appellant wore cut-off jogg ing pan ts with no p ockets and wore no shirt. She further stated that officers recovered no money from Appellant. Ms. Rose further averred that peop le visiting Appellant typically knocked on his window. Finally, Ms. Rose
-5 -stated that she did not hear anyone knock at her son's window on the evening of July 20 but believed that she would have heard the knock had someone done so.
Cedric Brownlee, Appellant's cousin, testified that he visited the Neeley Road residence on July 20 but left before the police arrived. Mr. Brownlee was in Appe llant's room when Ms. Strickland came to the window. Brownlee testified that Strickland and Appellant spoke briefly and that Strickland handed Appellant something which he threw back out of the window. Brownlee departed before the conversation between Appellant and Strickland ended. According to Bro wnlee 's testimony, he never saw Appellant hand drugs to an yone a nd sa w no d rugs in Appellant's room. Appellant wore cut-off sweat pan ts and no sh irt. As Mr. Brownlee walked from the house, he saw Ms. Strickland retrieve something from the ground.
Spencer Miller, Appellant's nephew and Ms. Ruthie Rose's grandson, testified that he was in the house when the police arrived. He also stated that Appellant, Appellant's mother and father, and Ce dric Brownlee were also there at that time. Appellant answered the door. According to Miller, Appellant wore cut-off sweat pants with no pockets and wore no shirt. Miller averred that the police officers recovered no drugs or money from Appellant. Additionally, Miller admitted that prio r to trial, he had discussed the incident with Appellant, Ms. Rose, and Mr. Brownlee.
Appellant stated that he was at home on July 20, 1995. He testified that his parents, Spencer Miller, Cedric Brownlee, and Nathaniel Turner we re there as well. Mr. Brownlee was in Appellant's room when Edna S trickland c ame to the window. Accord ing to Ap pellant, Edna Strickland was intoxicated and flirted w ith him. Ms. Strickland allegedly told Appellant that she "had a trick in the car" and that she was "trying to buy some dope." Strickland asked Appellant where she
-6 -could get some drugs, and he told her that he did not know. Ms. Strickland threw some money in the window, but Ap pellan t picke d it up and threw it back to her. Appellant saw Stric kland retrie ve the m oney an d put it into he r pants. She walk ed away and got into a car. Appellant denied selling cocaine to and receiving mone y from M s. Stricklan d. He testified that he spoke to Strickland for about four or five minutes and that he never left the window. The police arrived at the residence about one-half hour later and arrested him. He stated that he wore shorts with no pockets and was shirtless. According to Appellant, one officer searched him and said that he had recovered the twenty dollars. Howeve r, Appellant claimed that the police took nothing from him. Appellant testified that wh en he aske d if he could see the mon ey, one of the officers directed him to "shut up." The police searched Appellant's room without perm ission and d iscove red a b ag of h ome mad e lye so ap an d a m othba ll.
II. JURY INSTRUCTIONS
Appe llant's o nly complaint on this direct a ppea l is that he was d enied his constitutional right to tria l by jury b ecau se the trial court refused to instruct the jury on the lesser included offense of simple possession of a controlled substance or casual exchange. We disagree.
Both the Sixth Ame ndm ent to th e Unite d State s Con stitution and A rticle I, § 9 of the Tenn essee C onstitution guaran tee an accu sed the right to trial by jury. Encompassed within the constitutional right to trial by jury is the accused's right to a corre ct and com plete c harge of the la w applicab le to the ca se. State v. Phipps, 883 S.W .2d 138 , 142 (T enn. C rim. App . 1994); State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981). The trial court's failure to instruct the jury on any lesser included offenses denies a defendant his constitutional right
-7 -to trial by jury. Wright, 618 S.W.2d 310, 315 (citing State v. Staggs, 554 S.W.2d 620, 626 (T enn. 1977 )).
Tenn . Code Ann. § 4 0-18-11 0 provide s in part:
(a) It is the duty of all judges charging juries in cases of criminal prose cution s for an y felony where in two (2) or more grades or classes of offense may be included in the indictme nt, to charge the jury as to all of the law of each offense included in the indictm ent, without any request on the part of the defendant to do so. Tenn. C ode Ann . § 40-18-110 (a).
Tennessee Rules of Criminal Procedure 31(c) permits a defendant to be convicted of "an offen se nec essarily inc luded in th e offense charge d. . . ." T ENN. R. C RIM. P. 31(c).
Tennessee case law is cle ar that a defen dant is entitled to a jury instruction "on all lesser included offenses where `any facts. . . are susceptible of inferring guilt of any lesser included o ffense.'" State v. T rusty, 919 S.W.2d 305, 310 (Tenn. 1996) (quoting State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981)). In Howa rd v. State , the Ten nesse e Supr eme C ourt articula ted the approp riate test for determining whether a particular offense is a lesser offense nece ssarily included in the indictment. 578 S.W.2d 83, 85 (T enn. 19 79). "[A]n offense is nece ssarily included in another if the elements of the greater offense, as those elem ents a re set fo rth in the indictment, include, but are not congruent with, all the elem ents of the lesser." Id. See T rusty, 919 S.W .2d 305 , 311 (approving the definition of "lesser included offense" as set forth in the Howard decision).
Tenn. Code Ann. § 39-17-418 provides in pertinent part: "(a) It is an offense for a pe rson to know ingly possess or casually exchange a controlled substance unless the substance was obtained directly fr om o r pursu ant to a valid prescription or order of a practitioner while acting in the course of professional
-8 -practice." Tenn. Co de Ann. § 3 9-17-418(a ). Tenn. Code Ann. § 39-17-419 provides:
It may be inferred from the amount of a controlled substance or substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. It may be inferred from circumstances indicating a casual exchange among individu als of a small amount of a controlled substance or substances that the controlled substance or substances so exchanged were possessed not with the purpose of selling or otherwise dispensing in violation of the provisions of § 39-17- 417(a). Such inferen ces shall be transmitted to the jury by the trial judg e's ch arge, a nd the jury will consider such inferences along with the nature of the substance possessed when affixing the p enalty. Tenn. Code Ann. § 39-17-419.
Appellant was co nvicted of p ossess ion of coc aine with in tent to sell. Officer Michael Hardy purchased twenty dollars worth of cocaine as part of the Organized Crim e Unit's "buy-bust" drug operation. Under similar circumstances, this Cour t previo usly ha s refus ed to re quire that the jury be instructed as to simp le possession of a controlled substance as a lesser included offense of possession with intent to s ell. See, e.g., State v. William Howard Horton, No. 01C01-9312-CR-00435, Davidson Coun ty (Tenn. Crim. App., Nashville, October 6, 1994), perm. to appeal denied, (Tenn. 199 5); State v. J. S alts III, No. 01C01-9306-CC-00181, Sum ner Co unty (Te nn. Crim . App., Nashville, March 29 , 1994). The trial court was not required to instruct the jury as to the inferences which are permitted by Tenn. Code Ann. § 39-17-419.
The judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
-9 -CONCUR:
(See Below ) JOE B. JONES, PRESIDING JUDGE
_________________________________ GARY R. WADE, JUDGE
The H onorab le Joe B . Jones d ied May 1, 1998 , and did n ot participa te in this Opinion. We acknowledge his faithful service to this Court, both as a member of the Court and as its Presiding Judge.
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