State of Tennessee v. William Jason Harris ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 14, 2015 Session
STATE OF TENNESSEE v. WILLIAM JASON HARRIS
Appeal from the Circuit Court for Bedford County
No. 17534, 17658 Franklin L. Russell, Judge
No. M2014-00375-CCA-R3-CD - Filed June 9, 2015
A Bedford County Jury convicted Defendant, William Jason Harris, of promotion of
methamphetamine manufacture, and Defendant pled guilty to failure to appear. He received
consecutive sentences of twelve years for promotion of methamphetamine manufacture and
six years for failure to appear to be served in confinement. On appeal, Defendant argues: (1)
that the trial court erred by allowing the State to impeach his mother’s testimony with
Defendant’s prior convictions; (2) that the trial court erred in allowing evidence of
Defendant’s past use and manufacture of methamphetamine to rebut Defendant’s assertion
that he was coerced and threatened into committing the offense of promotion of
methamphetamine manufacture; (3) that the trial court improperly allowed the State to admit
the “pseudoephedrine log” which contained Defendant’s past attempts to purchase
pseudoephedrine; (4) the trial court did not fulfill its role as thirteenth juror, by allowing the
jury’s verdict to stand; and (5) the trial court erroneously denied Defendant’s request for a
sentence of community corrections. After a thorough review, we affirm the judgments of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OBERT L. H OLLOWAY, J R., JJ., joined.
Thomas S. Santel, Jr., Murfreesboro, Tennessee (on appeal); and William Stanley Bennett,
Murfreesboro, Tennessee (at trial) for the appellant, William Jason Harris.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert Carter, District Attorney General; Michael David Randles and Richard Cawley,
Assistant District Attorneys General; for the appellee, the State of Tennessee.
OPINION
I. Background
Agent Shane George of the Shelbyville Police Department, who is assigned to the 17 th
Judicial District Drug Task Force, testified that on June 5, 2012, he learned from a CVS
pharmacy employee that Mary White was attempting a suspicious purchase of
pseudoephedrine at the CVS pharmacy on Lane Parkway in Shelbyville. Agent George drove
to the pharmacy and conducted surveillance in the parking lot. Agent Brad Martin also
arrived and aided with surveillance. Agent George observed Ms. White walk out of the store
and get into a silver Kia vehicle with three male occupants, including Defendant,
Defendant’s brother James Dewey Harris (a.k.a. “D”), and Samuel Brent Fults who is Ms.
White’s son. Agent George then observed the Kia, driven by “D”, travel to the Rite Aid
pharmacy located a few blocks from CVS. He testified that “D” and Mr. Fults exited the
vehicle and walked into Rite Aid together. Ms. White and Defendant remained in the car.
During that time, Agent George learned that Ms. White was unable to purchase any
pseudoephedrine from CVS because she did not “present the correct symptoms to the
pharmacist.” He then observed “D” and Mr. Fults get back into the Kia, and “D” drove to
the Walgreens pharmacy located on North Main Street. Agent George observed Ms. White
and one of the men get out of the car and walk into the pharmacy. He noted that “there was
a lot of back and forth movement between the, the vehicle and the pharmacy. I think there
were, at least, one in and out that took place by those individuals. So, they, they went in, they
came out, they went back in, and they came out.” Agent George attempted to call Walgreens
and notify them of possible criminal activity but he could not get an answer. He then pulled
up the National Precursor Log Exchange and determined that there was no sale of
pseudoephedrine that took place while the individuals were in the pharmacy.
Agent George testified that Ms. White and the other individuals got into the Kia and
drove back to CVS. He said:
Once they were at the CVS pharmacy, I saw Mr. Fults, back, the male backseat
passenger and Mary White’s son, exit the vehicle and go into the pharmacy.
And within just a short period of time he came back out and he was carrying
a pharmacy bag that’s consistent with, you know, going into the pharmacy and
getting a box of pseudoephedrine and then coming out with it in a bag.
Now, the vehicle that, that they were in was parked on the, the sheriff’s office
side of the pharmacy. Mr. Fults came out. Instead of going back directly to
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the vehicle, he made a, if you’re looking at him at the front of the pharmacy,
he went to my left, be his right, and walked all the way down to, past the little
cut-through there in that strip mall. And he walked out of my sight towards the
back of the store. And Special Agent Martin was back there observing his
actions.
And then within a, a relatively short period of time, he came back around the
front of the store and he was empty-handed. He no longer had the bag and he
no longer had the box of pseudoephedrine in his hands, which is, is, you know,
I thought was a little strange but not uncommon.
So, I observed Mr. Fults then get into the vehicle with the Harrises [sic] and
Ms. White. They pulled out of their parking spot, went back out, got on North
Main Street, and went directly up to the [Walmart] pharmacy located on North
Main Street. Now, I was able to video record Mr. Fults’ activities at the CVS,
and I continued video recording the, once they arrived at the [Walmart]
location.
Agent George observed Defendant, Ms. White, “D”, and Mr. Fults walk into Walmart
as a group, and they walked over to the pharmacy section of the store. Agent George noted
that while in the parking lot, before entering the store, he observed what appeared to be
money being exchanged between the four individuals. Agent George walked in the store and
over to the pharmacy, spoke with the pharmacist, and gave him a description of Defendant,
Ms. White, “D”, and Mr. Fults. Agent George also told the pharmacist that the group of
individuals may attempt to buy pseudoephedrine products and to notify Agent George if a
transaction occurred. Agent George turned around and saw Ms. White in line behind him
with a box of pseudoephedrine that he later watched her purchase. Agent George observed
“D” purchase a bottle of hydrogen peroxide, and Defendant purchased a large quantity of
matches. Agent Martin observed the individuals as they walked out of Walmart and got into
the car. The vehicle turned on 231 North and drove toward Rutherford County.
Agent George testified that he left the store and “hurried to my vehicle because I knew
at that point that, you know, we had two confirmed boxes of pseudoephedrine that were in
the vehicle and then hydrogen peroxide and the matches, which are components used to
manufacture methamphetamine.” He then followed the Kia out of the parking lot. Within
a short period of time, Agent George paced the vehicle and determined that the vehicle was
traveling sixty miles per hour in a fifty-mile per hour zone. At that time, Agent George felt
he had grounds to stop the vehicle; however, he decided to make sure that the occupants in
the car did not intend to make any further stops to purchase additional items. Once the
vehicle approached the intersection of “82 and 231 North” and turned right, Agent George
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activated his blue lights and pulled the vehicle over at a BP station. Agent Martin also
arrived on the scene. “D” was driving, and Defendant was sitting in the front passenger side
of the vehicle. Mr. Fults and Ms. White where sitting the back seats. Agent George asked
for “D”’ driver’s license, which “D” provided. Agent George then verified that “D’s” license
was not suspended or revoked, and he asked “D” for permission to search the vehicle, which
“D” denied. Agent George explained that at that point he performed a warrantless search of
the vehicle.
Agent George asked Defendant to exit the vehicle, and Agent George searched him.
Agent George found seven individual “blister packs” of pseudoephedrine tablets that had
been removed from the box in the crotch area of Defendant’s pants. He also asked the other
occupants of the vehicle to step out, and he searched them. Agent George testified that
Defendant had boxes of matches underneath him in the car that had been torn open, and the
process of removing the “striker plate” from the matches had begun. Agent George searched
the vehicle and found a Walmart receipt, a bottle of hydrogen peroxide that had been
purchased by “D”, a CVS receipt that reflected the purchase of CVS brand decongestant in
an amount of 2.88 grams, an empty box of Walmart brand cold medicine which contained
pseudoephedrine, coffee filters, razor blades, a hole punch, tweezers, digital scales, insulin
syringes, and a “meth pipe.” Agent George noted that some of the items were tools
“commonly found around people that are manufacturing methamphetamine.” He also
testified that insulin syringes are “commonly used by addicts to inject the methamphetamine
into their bloodstream.” Agent Martin collected all of the evidence from the vehicle after the
search.
Sometime later, Agent George was completing paperwork for the seizure of the
vehicle “because it was used during the commission of a felonious crime.” When he went
to serve the paperwork on “D,” who was in custody, Agent George was informed by a
correctional officer that Defendant wanted to speak with him. Agent George informed
Defendant that he did not have to speak with him but Defendant was “very adamant about
wanting to speak with [him] at that point.” Agent George testified:
I explained to him that I worked directly for the district attorney’s office and
that any cooperation I was able to get from him I would be able to take back
to [the] district attorney’s office and provide them that information. And if we
were able to do anything proactive with his information, then that would be
good for him and I could provide that to the DA’s office and then they would
take that into consideration when it came time to adjudicate his charges, you
know, dispose of them in court, in the, in the courtroom. And, and he told me
[he] understood and we went on about the business of conducting the
interview.
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Agent George testified that Defendant stated he, “D”, Mr. Fults, and Ms. White were
in Shelbyville together to purchase “cold pills.” Defendant noted that Mr. Fults had initially
called and said that he would purchase pseudoephedrine in exchange for methamphetamine.
Defendant told Agent George that he used the “red phosphorous” method of making
methamphetamine and described the process. He admitted that he had traded
methamphetamine for “boxes on at least one occasion.” Defendant told Agent George that
his “course of action” on June 5, 2012, was a “finished product” of methamphetamine. He
thought that he could have made three grams of methamphetamine out of the
pseudoephedrine purchased. Defendant also provided information concerning a prescription
pill drug dealer. Agent George understood that Defendant would then act as a confidential
informant in building a case against the dealer. Agent George gave Defendant a contact
number, and when Defendant made bond and was released from custody, he briefly contacted
Agent George two or three times but failed to maintain contact. During the interviews,
Defendant never told Agent George that he had been threatened by his brother, James Dewey
Harris (a.k.a. “D”).
Agent George checked the pseudoephedrine purchase database and learned that
Defendant’s purchase history was approximately four-and-a-half pages long. At
approximately 7:10 p.m. on June 4, 2012, Defendant attempted to purchase a 2.88-gram box
of pseudoephedrine at the CVS located at 825 North Main Street in Shelbyville. Agent
George testified that Defendant was blocked from the purchase “because he was outside the
compliance, the weight for the compliance within a 30-day period, that at that point in time
was nine grams of pseudoephedrine purchased, . . . within a 30-day period.” Defendant also
attempted to purchased a box of pseudoephedrine on the same date at approximately 8:28
p.m. at the Walgreens across the street from CVS. The sale was again blocked because of
the “federal compliance measures that were in place.”
Mary White testified that on June 5, 2012, she got into the car with Defendant, “D”,
and her son, Mr. Fults, and they drove to Shelbyville. They first stopped at CVS, and Ms.
White attempted to purchase a box of pseudoephedrine, but the purchase was denied. She
said that the purchase was for “D”. Ms. White testified that they next stopped at Walgreens,
and everyone went inside. She said that no one attempted to purchase any pseudoephedrine,
and they left and drove to Walmart. Ms. White admitted that the purpose of going to Wal-
mart was to purchase a box of pseudoephedrine, which she did. She testified that Mr. Harris
showed her what to buy. Ms. White was aware that the pseudoephedrine was to be used to
make methamphetamine because she “heard people talk about it.” She was arrested after
making the purchase.
Bonnie Sue Hawkersmith, Defendant’s fiancé, testified that she inadvertently mailed
a letter written by Defendant to the district attorney’s office. She said that the letter was
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supposed to have been mailed to the pastor of the church that she attended. In the letter,
Defendant made the following admission:
‘My brother, [“D”], was making it,’ [ ]. ‘I did help him get things to make
the day [sic], the drug along with the mother, son, that was with us. And the
two of us which also buying things to help with the process. But my brother,
[“D”], being the one that was the actual maker of the drug.
Ms. Hawkersmith presumed that the drug Defendant was referring to was methamphetamine.
Defendant’s brother, “D”, testified on behalf of Defendant. He said that prior to June
5, 2012, he and Defendant were enrolled in vocational school together in McMinnville. “D”
testified that on June 5, 2012, he and Defendant got out of school at approximately 3:00 p.m.
and drove to Manchester to pick up Mr. Fults and Ms. White. “D” was driving, and they
drove to Shelbyville. “D” testified that Defendant “kind of blew and shook his head”
because he knew that “D” was going to Shelbyville to purchase pseudoephedrine to make
methamphetamine. “D” claimed that Defendant knew that “D” would become “sick” if he
did not get any methamphetamine to use, and then Defendant would not have a ride to
school. He said that Defendant also knew that he had a temper. “D” testified that he knew
Mr. Fults because they were in prison together.
“D” testified that they drove to CVS in Shelbyville, and the following took place:
Mr. Fults went in and, and they bought the pseudoephedrine, and, and when
he, when he came out, he sent his mother in and she was, kind of, nervous
about going in. And he said, Momma, you mean, you mean to tell me that
we’ve come all this way and you’re not even going to go in, he’s going to give
us $50 for this box of pseudoephedrine, you mean, to tell me - - and as far as -
- the only thing my brother ever said in that car on that ride was, he turned
around and said, Man, that, she ain’t got to go in that store if she don’t want
to. And they, they, kind of, fussed about that for a little while.
“D” testified that Defendant did not go into the CVS, and he did not ask Defendant to go in
the store. Ms. White then went into Rite Aide, and she attempted to purchase
pseudoephedrine but the sale was denied. At that point, “D” testified that Defendant was
ready to go home but he said that Defendant knew that “D” was going to “get [his] way or
else.”
“D” testified that he went into Walmart. He admitted to having a picture of a box of
pseudoephedrine on his phone so that Mr. Fults did not purchase the wrong product. “D”
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testified: “Because once you purchase a box of pseudo, you can’t buy any more until, like,
a 48-hour deal.” He said that Defendant was against making methamphetamine; however,
he admitted that Defendant purchased the matches in Walmart. “D” testified that he asked
Defendant to start breaking down the matches in the car. He said that Defendant was trying
to “keep the peace” with him because Defendant needed a ride to school. “D” also said that
Defendant attempted to hide the pseudoephedrine pills for him when they were stopped by
Agent George.
On cross-examination, “D” believed that Defendant may have started using
methamphetamine, “but it wasn’t nothing like [“D”] was using it.” Defendant had indicated
during the interview with Agent George that he would receive “two-tenths of a gram” of
methamphetamine. However, “D” testified that the methamphetamine would have been split
between “D”, Ms. White, and Mr. Fults. “D” claimed that although Defendant indicated to
Agent George that he and “D” were making methamphetamine together, “D” was “doing
[his] own cook” on June 5, 2012.
Wanda Eastes is a registered nurse and mother to Defendant and “D”. She testified:
They have very different personalities. [“D”] is, was the oldest. He developed
an aggressive personality. The leader, usually. He was the leader of the two.
We dealt a lot with [“D’s”] personality problems, I guess, you might say. We
tiptoed around him quite a bit.
And [Defendant] was more laid back. More a peacemaker, I guess. He, he
wanted things to, he had some goals and some dreams. And the two of them -
- [“D”] didn’t seem to have that. He didn’t seem to look forward to those kind
of things. [Defendant], kind of, was led by [“D”] quite a bit. There’s so much
I want to say about the two. I guess that the, personality-wise, I could depend
on [Defendant] and I couldn’t depend on [“D”].
Ms. Eastes testified that “D” would sometimes become violent, and she had seen him act
aggressively toward Defendant. She testified:
I saw a lot of aggression. You couldn’t make [“D”] mad because he would
react. And there was a time that he got mad - - and I don’t know what over,
you would never know what it was most of the time, but he threw a, a brick
through the windshield of the car that [Defendant] was in, driving.
Ms. Eastes testified that she was shocked to learn that Defendant had been arrested for the
present offenses. She said:
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Because I knew what [Defendant] wanted. I knew what he was doing. I knew
he was, he was - - I know his routine. He would call me, sometimes, and, and
- - on the weekends. And when we went to church, he would, it was always,
you know, about his school and about Suzie and the kids and, and, and how he
wanted a life, and, you know, he wanted to, to, he wanted to become a, he
wanted to finish his schooling. And he wanted to, to have a, a like with, with
her and those children.
Ms. Eastes noted that Defendant had a lot of sinus-related problems and that he took
pseudoephedrine for those problems.
On cross-examination, Ms. Eastes agreed that none of “D’s” prior convictions were
for any violent offenses. She admitted that Defendant had prior convictions for vehicular
homicide, facilitation of aggravated robbery, aggravated burglary, theft over $500, failure to
appear, vandalism over $500, theft over $1,000, and contraband in a penal facility. Defendant
also had two additional felony convictions in Coffee County.
II. Analysis
A. Cross-examination of Wanda Eastes on Her Knowledge of Defendant’s Prior
Convictions
Defendant contends that the trial court committed reversible error by allowing the
State to cross-examine Defendant’s mother, Wanda Eastes, concerning her knowledge of
Defendant’s prior convictions. We conclude that there was no reversible error.
Defendant’s theory of defense was that he was an essentially an unwilling participant
in the promotion of methamphetamine and that he acted as a result of coercion or
intimidation by his brother, “D.”
At trial, Ms. Eastes was called as a character witness for Defendant. She testified that
Defendant was “laid back” and a “peacemaker” and often led by “D.” Ms. Eastes testified
that “D” was sometimes aggressive toward Defendant. She was surprised to receive a phone
call from the Bedford County Sheriff’s Department indicating that Defendant had been
arrested. Ms. Harris testified: “And that was unbelievable to me. I, I could accept that it
was “D.” I, I - - but it was very shocking that [Defendant] was there.” As noted above, Ms.
Eastes further testified:
Because I knew what [Defendant] wanted. I knew what he was doing. I knew
he was, he was - - I knew his routine. He would call me, sometimes, and, and -
8
- on the weekends. And when we went to church, he would, it was always,
you know, about his school and about Suzie and the kids and, and, and how he
wanted a life, and, you know, he wanted to, to, he wanted to become a, he
wanted to finish his schooling. And he wanted to, to have a, a life with, with
her and those children.
Ms. Eastes was aware at the time of the trial that Defendant had used methamphetamine in
the past but she was not aware that he was involved in it at the time of his arrest, and she
found it “shocking.” She also said that it “wasn’t him.” Ms. Eastes testified that Defendant
was eager to attend school, and he worked with the youth at church. She also noted that
Defendant had severe sinus-related problems from an injury to his face at the age of fourteen
and that is why he used pseudoephedrine. Ms. Eastes testified that due to the injury to his
face from a four-wheeler accident, Defendant “should never get another lick to the face, or
to the nose, or around the eye.” Therefore, she did not want him fighting with anyone.
After Ms. Eastes’ direct testimony the trial court held a jury-out hearing to determine
whether the defense had “opened the door” for the State to question Ms. Eastes about
Defendant’s prior criminal history. The court stated:
Folks, I suspect the General is getting ready to tell me that the door has been
opened with regard to proof about certain conduct, including, I suspect, the 11
prior felony convictions that he alleges this defendant has, including
facilitation of aggravated robbery, including vehicular homicide, including
burglary.
And I would point you to Rule 608 with in mind that this is talking about the
character of a witness in 608, but this, this statement is, is in the advisory
comments, “If the witness makes a sweeping claim of good conduct on direct
examination, that claim may open the door to cross-examination without
pretrial notice and with a lower standard of probativeness[,] as rebuttal of the
broad claim would itself tend to show untruthfulness.”
This witness has just painted the defendant as a virtuous individual and has
contrasted that with his brother, “D.” General, I’m not trying to put words in
your mouth, but this is, because I suspected this was going to be the issue,
that’s why I excused the jury ‘cause I thought it might take us a few minutes
to deal with this.
After hearing arguments from each side, the trial court made the following findings:
9
Respectfully, I believe the door has been opened except to this degree, I’m not
going to allow reference to the two sale convictions other than to refer to them
as two additional felony convictions. The vehicular homicide, obviously,
there’s violence in that. The aggravated burglary is not closely related to the
crime here. The robbery involves violence, and she had specifically stated, she
has specifically testified about the propensity of violence of the one son and
not the other. The theft, yes. The failure to appear because it’s a, a conviction,
and the contraband in a penal facility.
I’m going to allow nine of them to be, for her to be questioned about those
specifically. The two sales, even though the probative value is enormous, the
potential prejudicial effect there may possibly outweigh that.
We had tried very hard to keep prior conduct out of the case, and, and in all
honesty the defense had brought it in both by asking about meth use, but in this
particular case, by painting this person as virtuous and in contrast with [a]
violent and troubled brother. The jury would be grossly misled, and that has
made the probative value of the prior convictions, except for the two, and
makes that greatly outweigh the unfair prejudicial effect.
There’s very little unfair about the prejudicial effect because of the way these
issues, who, who is injecting them into, into the case and the degree to which
a misimpression has been to, potentially, brought into the jurors’ minds.
As pointed out by the State, the trial court in this case improperly cited Tenn. R. Evid.
608 to find that the State could cross-examine Ms. Eastes about her knowledge of
Defendant’s prior convictions. Rule 608 does not address the admission of evidence of
Defendant’s prior convictions to challenge the testimony of a witness testifying about a
defendant’s good character. However, Tennessee Rule of Evidence 404(a)(1) provides:
(a) Character Evidence Generally - Evidence of a person's character or a trait
of character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion, except:
(1) Character of Accused - In a criminal case, evidence of a pertinent trait of
character offered by an accused or by the prosecution to rebut the same or, if
evidence of a trait of character of the alleged victim of the crime is offered by
the accused and admitted under Rule 404(a)(2), evidence of the same trait of
character of the accused offered by the prosecution.
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Rule 404(a)(1) reflects an exception to the general bar on the admissibility of character
evidence and permits the defendant in a criminal case to “open the door” by introducing
evidence of his or her own character. Neil P. Cohen, et al., Tennessee Law of Evidence §
4.04[a] (5th ed.2005). Until the defendant takes this step, however, the State cannot
introduce evidence of a defendant's bad character.
Once the accused introduces evidence of his or her own good character, the
State may also address the issue of the accused’s character in order to prevent
the trier of fact from receiving a one-sided view of the defendant’s character.
Id. at § 4.04[4][a]. Furthermore, the defendant’s proof under Rule 404(a)(1)
is limited to reputation and opinion evidence only. Id. at § 4.04[4][c].
However, under Rule 405(a), the State may introduce evidence of specific
instances of conduct when cross-examining a defense witness in response to
the presentation by the accused of this reputation or opinion character
evidence. Id. These include acts resulting in criminal convictions. Id.
Additionally, Rule 405 requires the court to hold a jury-out hearing to
determine whether a reasonable factual basis exits for an inquiry and to
determine whether the probative value of a specific instance of conduct
regarding the character witness’ credibility outweighs its prejudicial effect on
substantive issues. Tenn. R. Evid. 405(a)(1)-(3).
State v. Davidson M. Taylor, No. W2006-00543-CCA-R3-CD, 2007 WL 3026374, at *4
(Tenn. Crim. App. Oct. 12, 2007).
In this case, although the trial court referred to the incorrect rule of evidence to justify
its ruling that Ms. Eastes could be questioned about Defendant’s prior criminal record, the
trial court followed the procedural mandates of Rule 405. That is, it held a hearing outside
the presence of the jury, after which it determined that a reasonable factual basis existed for
the inquiries, and the probative value of the specific instances of conduct on Ms. Eastes'
credibility outweighed its prejudicial effect on the substantive issue. See Tenn. R. Evid.
405(a). We note that some of Defendant’s convictions were more than ten years old.
However, Tenn. R. Evid. Rules 404 and 405 do not impose a time limit on the prior
convictions used to counter evidence of good character. See State v. Davidson M. Taylor,
2007 WL 3026374, at *3.
We find that Defendant in this case opened the door to the presentation of rebuttal
character evidence. Ms. Eastes’ testimony essentially characterized Defendant as a non-
violent law-abiding citizen in contrast to her other son “D,” whom she claimed was violent
and troubled. Despite her knowledge of Defendant’s criminal history, which included
convictions involving violence, Ms. Eastes testified that she was shocked to learn that
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Defendant had been arrested on June 5, 2012. In State v. Sims, 746 S.W.2d 191, 194 (Tenn.
1988), the supreme court noted that “in Tennessee a character witness may be cross-
examined as to what [she] has heard in the community about the character of the defendant
to show that [her] conclusion as to the defendant’s reputation is unsupported or to test the
accuracy and candor of the witness [herself].” As pointed out by the trial court, it would
have been “grossly” misleading to the jury to allow Defendant to “open the door” to
character evidence and not allow the State to rebut that evidence. The trial court properly
allowed the State to cross-examine Ms. Eastes to test her knowledge of defendant’s criminal
history.
We do find however, that it was error for the trial court to allow the state to cross-
examine Ms. Eastes about “two other felony convictions out of Coffee County” without
identifying what crimes Defendant was convicted of. This issue was not addressed by the
State in its brief. Therefore, any argument by the State is waived. In State v. Galmore, 994
S.W.2d 120 (Tenn. 1999), the Supreme Court held that a limiting reference to a prior felony
as “a felony” without any further identification is improper in the context of Tenn. R. Evid.
609(a)(3).
Not identifying the felony . . . would permit a jury to speculate as to the
nature of the prior conviction. Furthermore, instructing the jury on an
unnamed felony would provide inadequate information for a jury to properly
weigh the conviction’s probative value as impeaching evidence. We hold that
the proper application of the balancing test under Tenn. R. Evid. 609(a)(3)
requires identification of a prior conviction.
Id. at 122 (citations omitted). We conclude that the same analysis applies to rulings pursuant
to Tenn. R. Evid. 404 and 405.
Although it was error for the trial court to admit evidence of Defendant’s two
unnamed felony convictions, any error was harmless given the evidence against Defendant.
Based on the foregoing, we conclude that Defendant is not entitled to relief on this issue.
B. Defendant’s Admissions of Prior Bad Acts and Admission of the
“Pseudoephedrine Log” into Evidence
First, Defendant argues that the trial court erred in allowing the State to introduce
evidence that he told Agent George during a recorded interview about his prior use and
manufacture of methamphetamine. More specifically, Defendant objects to the following
statements from the interview: (1) Samuel Fultz approached Defendant in the past to
exchange methamphetamine for pseudoephedrine pills; (2) Defendant said that he used
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methamphetamine in the past before going to classes and that his use was a “continuous
cycle”; (3) Defendant used his cell phone to communicate with others regarding
methamphetamine; and (4) Defendant said that he used the “red phosphorous method” to
manufacture methamphetamine. We note that the State did not address each instance of prior
bad acts raised by Defendant.
It is well-established precedent “that trial courts have broad discretion in determining
the admissibility of evidence, and their rulings will not be reversed absent an abuse of that
discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). The general rule is that
evidence of a defendant’s prior conduct is inadmissible, especially when previous crimes or
acts are of the same character as the charged offense, because such evidence is irrelevant and
“invites the finder of fact to infer guilt from propensity.” State v. Hallock, 875 S.W.2d 285,
290 (Tenn. Crim. App. 1993). Tenn. Rule of Evid. 404(b) permits the admission of evidence
of prior conduct if the evidence of other acts is relevant to a litigated issue such as identity,
intent, or rebuttal of accident or mistake, and the probative value outweighs the danger of
unfair prejudice. Tenn. R. Evid. 404(b) Advisory Comm’n Cmts.; see State v. Parton, 694
S.W.2d 299, 303 (Tenn. 1985); State v. Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App.
1987). However, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity with the character trait.” Tenn.
R. Evid. 404(b). Before admitting evidence under Rule 404(b), the rule provides that (1)
upon request, the court must hold a hearing outside the jury’s presence; (2) the court must
determine that the evidence is probative on a material issue and must, if requested, state on
the record the material issue and the reasons for admitting or excluding the evidence; (3) the
court must find proof of the other crime, wrong, or act to be clear and convincing; and (4)
the court must exclude the evidence if the danger of unfair prejudice outweighs its probative
value. Tenn. R. Evid. 404(b).
The rationale underlying Rule 404(b)’s exclusion of evidence of a defendant’s prior
bad acts is that admission of such evidence carries with it the inherent risk of the jury
convicting the defendant of a crime based upon his bad character or propensity to commit a
crime, rather than the conviction resting upon the strength of the evidence. State v. Rickman,
876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the defendant’s prior bad acts
are similar to the crime for which the defendant is on trial. Id.; see also State v. McCary, 922
S.W.2d 511, 514 (Tenn. 1996).
Defendant was convicted of violating Tennessee Code Annotated section 39-17-433,
promotion of methamphetamine manufacture:
(a) It is an offense for a person to promote methamphetamine manufacture.
A person promotes methamphetamine manufacture who:
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(1) Sells, purchases, acquires, or delivers any chemical, drug, ingredient, or
apparatus that can be used to produce methamphetamine, knowing that it will
be used to produce methamphetamine, or with reckless disregard of its
intended use;
(2) Purchases or possesses more than nine (9) grams of an immediate
methamphetamine precursor with the intent to manufacture methamphetamine
or deliver the precursor to another person whom they know intends to
manufacture methamphetamine, or with reckless disregard of the person’s
intent; or
(3) Permits a person to use any structure or real property that the defendant
owns or has control of, knowing that the person intends to use the structure to
manufacture methamphetamine, or with reckless disregard of the person’s
intent.
In this case, Defendant filed a pretrial “MOTION IN LIMINE REGARDING
REDACTION OF CHARACTER EVIDENCE AND DEFENDANT’S CRIMINAL
HISTORY FROM RECORDS.” In a jury-out hearing at trial, defense counsel objected to
the admission of portions of Defendant’s statement to Agent George when Defendant spoke
of “prior bad acts.” The trial court and both parties then determined that a redacted version
of the recording of the statement would be played for the jury which was consistent with a
paper transcript that was prepared for Agent George to read to the jury. Although
Defendant’s statement was redacted to some degree, defense counsel suggested that
additional redactions were necessary. The State indicated that further redactions would cause
a delay in the proceedings. The trial court then stated:
Well, let’s hear what you’re complaining about. And I know that, that there
are, in effect, prior bad acts when you talk about using before school. But
they’re very minor, and frankly, it appears to me that because of the defense
announced in opening, and legitimately, I mean, it was legitimate to say this
is our defense, you didn’t have to, but you did, and that’s perfectly legitimate
as a strategy, it is - - apparently, the defense is coercion by the brother.
The description in the, in these transcripts of the prior, of prior activities,
frankly, seems highly relevant to me to negate that. It - - when you read this
narrative, it, it, it appears that the defendant is very, very much involved in the
process, not as an unwilling participant, but as a, as a full participant in the
process.
14
So, I, I now think that the, this amount of prior activity is, number one, highly
probative, and number two, when compared to any, any unfair prejudicial
effect, I, I think the probative value far outweighs the, the prejudicial effect.
I’ll be glad to listen to you on any specific parts, but as a general proposition,
I think because of the defense, that some of these things have become much
more probative than they were before.
The fact that somebody was an addict two years before, ten years before, that’s
one thing, but his descriptions of, of activities and being an active user, and he,
he says I wasn’t doing it to sell, but, of course, this is not a, a crime of sale.
This is a crime of promotion of manufacture. So, I think most of what he, I
think everything he has to say is highly probative.
And, I mean, certainly, you can argue to the jury that he says all along it wasn’t
to sell it, but the General’s going to say, Well, that’s not - - I’m anticipating
that the General will say, Well, that’s not necessary to this particular crime, it’s
not possession with something with intent to sell or it’s not a sale charge, it’s
promotion of methamphetamine manufacture.
The trial court substantially complied with the requirements of Rule 404(b), and we
conclude that the trial court did not abuse its discretion by finding that the evidence was
probative of a material issue other than showing that Defendant acted “in conformity with
[a] character trait.” Tenn. R. Evid. 404(b). The proof showed that Defendant bought
matches, was tearing the striker pads from the matches at the time of the stop, Defendant was
in a car with individuals who had pseudoephedrine pills and hydrogen peroxide, and he had
pseudoephedrine pills in his pants. The State in this case had to prove that Defendant was
guilty as a principal or under the theory of criminal responsibility in that he participated in
the offense of promotion of methamphetamine manufacture with the others in the car. The
evidence in the recorded interview was admissible to prove defendant’s intent to manufacture
methamphetamine and to rebut testimony suggesting that Defendant was intimidated and
coerced by “D” into participating in the offense. Defendant is not entitled to relief on this
issue.
Next, Defendant asserts that the trial court erred by allowing the “pseudoephedrine
log” into evidence. First, he argues that the log is inadmissible as character evidence of prior
crimes in violation of Tenn. R. Evid. 404(b). Defendant further argues that the
pseudoephedrine log is hearsay and that the State failed to “establish that the document was
a business record as required under [Tenn. R. Evid.] 803(6).”
15
Defendant filed a motion in limine “to exclude methamphetamine portal records.” In
a pretrial hearing, the following exchange took place:
[Prosecutor]: Well, there’s still - - I don’t think it would require an
evidentiary hearing, defendant’s pretrial motion number
one, motion to exclude methamphetamine portal records.
I don’t think that’s going to require an evidentiary
hearing.
THE COURT: No. It’s going, it’s going to require some real eloquence
on behalf of the defendant is what it’s going to do. I
mean, one of the issues, you know, did not know what it
was for, those portal records are going to be awfully
relevant on that and - - okay.
* * *
[Defense Counsel]: - - what we, what we have here is that the defendant was
allegedly seen by law enforcement going into a business
establishment buying matches. And so, with other two,
other co-defendants who bought other things. My, my
defendant, my - - the meth portal records, of course, refer
to previous alleged purchases of ephedrine or
pseudoephedrine. It’s my contention they, that would be
a type of propensity evidence that wouldn’t apply to the
matches, in other words, under 404(a), it, I, I think that it
would be propensity evidence and, and disallowed.
Now, I’m sure the State was going to rely on 404(b),
which would - - as far as, perhaps, knowledge or intent.
But again, I, I, I just would, respectfully state that the
meth portal records do not go to the intent of what he’s
accused of. This is a meth promotion case, Your honor,
and he’s accused of buying or purchasing or possessing
or passing on ingredients with the knowledge that they
would be used to make methamphetamines or of reckless
disregard of their use. And I would just - - and if let in,
again, Your Honor, I think that it would be unfairly
prejudicial to, to defendant’s case, Your Honor.
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THE COURT: Okay. Respectfully, I, I feel that it would be highly,
highly relevant on knowledge and intent. And then
question is whether that’s outweighed by the unfair
prejudicial effect. Well, there’s a prejudicial effect, but,
respectfully, I don’t think it’s an unfair prejudicial effect
at all. So, in doing the balancing test, I, I conclude that
it would be admissible.
At trial, Agent George testified that the log of Defendant’s purchase history appeared
to be “approximately four-and-a-half pages long.” Agent George further testified that
Defendant attempted to make two purchases of pseudoephedrine the day before the present
offenses occurred, and the sales were blocked. Defendant did not object at trial to this
specific testimony. The State then moved to admit the pseudoephedrine logs into evidence
as an exhibit, and the trial court noted that the logs would be admitted “[n]oting the prior
objections[.]”
We agree with the trial court’s conclusion that evidence in the pseudoephedrine logs
were relevant to Defendant’s knowledge and intent in this case. The trial court substantially
complied with the requirements of Rule 404(b), and we again conclude that the trial court did
not abuse its discretion by finding that the evidence was probative of a material issue other
than showing that Defendant acted “in conformity with [a] character trait.” Tenn. R. Evid.
404(b).
As for Defendant’s argument that the trial court improperly admitted the
pseudoephedrine log without establishing it as a business record in accordance with Tenn.
R. Evid. 803(6), this issue is waived. Defendant did not raise this specific issue in his motion
in limine, at trial, or in his motion for new trial. See Tenn. R. App. P. 36(a) (“Nothing is this
rule shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”). Tenn. R. App. P. 3(e) provides that in “all cases tried by a jury, no issue
presented for review shall be predicated upon . . . [a] ground upon which a new trial is
sought, unless the same was specifically stated in a motion for a new trial; otherwise such
issues will be treated as waived.” See also State v. Lowe-Kelly, 380 S.W.3d 30, 33 (Tenn.
2012)(noting that “[a] defendant who fails to provide specific grounds for relief in a motion
for new trial risks failing to preserve those grounds for appeal.”).
Defendant argues that this court should consider the issue under plain error review.
Our Supreme Court has held that appellate courts are not precluded from reviewing issues
under the plain error doctrine. State v. Page, 184 S.W.3d 223, 230 (Tenn. 2006). This Court
may only consider an issue as plain error when all five of the following factors are met:
17
(1) the record must clearly establish what occurred in the trial court;
(2) a clear and unequivocal rule of law must have been breached;
(3) a substantial right of the accused must have been adversely affected;
(4) the accused did not waive the issue for tactical reasons; and
(5) consideration of the error is “necessary to do substantial justice.”
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for
determining plain error). Furthermore, the “plain error must be of such a great magnitude
that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 642 (internal
quotations and citation omitted).
Under the plain error doctrine, the Defendant is not entitled to relief. The Defendant
cannot establish that consideration of the error is “necessary to do substantial justice.” As the
State points out, the evidence against Defendant was overwhelming. Defendant was
observed by task force agents going from store to store in an attempt to procure the necessary
materials to manufacture methamphetamine. At the time of his arrest, Defendant had
pseudoephedrine concealed in his pants, and he was attempting to remove the “striker plates”
from matches that he had been observed purchasing in an attempt to obtain red phosphorous,
a component of methamphetamine manufacture. Accordingly, the Defendant is not entitled
to relief on this issue.
C. Thirteenth Juror
Defendant contends that the trial judge who presided over his trial erred in
performing his role as thirteenth juror by approving the verdicts. He argues that the trial
court erroneously permitted testimony concerning Defendant’s propensity to use and
manufacture methamphetamine, and that the court should have set aside the verdict “based
on the prejudicial testimony that the jury was permitted to hear during the trial.”
Tennessee Rule of Criminal Procedure 33(d) imposes a mandatory duty on the trial
judge to serve as the thirteenth juror in every criminal case. State v. Carter, 896 S.W.2d 119,
122 (Tenn. 1995). Rule 33(d) does not require the trial judge to make an explicit statement
on the record. Instead, when the trial judge simply overrules a motion for new trial, an
appellate court may presume that the trial judge has served as the thirteenth juror and
approved the jury’s verdict. Id. Only if the record contains statements by the trial judge
18
indicating disagreement with the jury’s verdict or evidencing the trial judge’s refusal to act
as the thirteenth juror, may an appellate court reverse the trial court’s judgment. Id.
Otherwise, appellate review is limited to sufficiency of the evidence pursuant to Rule 13(e)
of the Rules of Appellate Procedure. State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn.
Crim. App. 1993). If the reviewing court finds that the trial judge has failed to fulfill his or
her role as thirteenth juror, the reviewing court must grant a new trial. State v. Moats, 906
S.W.2d 431, 435 (Tenn. 1995).
In this case, Defendant does not assert that the trial court failed to perform its duty or
that the trial court indicated any disagreement with the jury’s verdicts. Rather, he contends
that the jury heard improper evidence of his prior convictions.
The record on appeal does not contain a transcript of the announcement of the jury’s
verdict. Therefore, as pointed out by the State, it is not known whether the trial court
specifically approved the jury’s verdict after it was announced. In any event, at the hearing
on Defendant’s motion for new trial, the trial court heard arguments from both Defendant
and the State and overruled the motion for new trial. Thus, we may presume the trial court
approved the jury’s verdict. Carter, 896 S.W.2d at 122.
As previously held by this Court: “It is not our function to reweigh the evidence but
merely to ensure that the trial court complied with its duty under Rule 33(d).” State v.
Ronald Dillman, Jr., No. E2009-00648-CCA-R3-CD, 2010 WL 1854135, at *8 (Tenn. Crim.
App. May 7, 2010) perm. app. denied (Tenn. Oct. 12, 2010). The trial court in this case
complied with its duty under Rule 33(d). Defendant is not entitled to relief on this issue.
D. Sentencing
Defendant contends that the trial court erred by failing to impose an alternative
sentence of community corrections. We disagree.
In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law
and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court
determined that “sentences imposed by the trial court within the appropriate statutory range
are to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 709 (Tenn. 2012). A finding of abuse of
discretion “‘reflects that the trial court's logic and reasoning was improper when viewed in
light of the factual circumstances and relevant legal principles involved in a particular case.’”
State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,
242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial
evidence that would support the trial court's decision. Id. at 554-55; State v. Grear, 568
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S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
The reviewing court should uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the purposes
and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court
imposes a sentence within the appropriate range and properly applies the purposes and
principles of the Sentencing Act, its decision will be granted a presumption of
reasonableness. Id. at 707.
Our Supreme Court extended the Bise standard to appellate review of the manner of
service of the sentence. The Court explicitly held that “the abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012). We are also to recognize that the defendant bears “the
burden of demonstrating that the sentence is improper.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991).
In determining the proper sentence, the trial court must consider: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by the
parties on the mitigating and enhancement factors set out in Tennessee Code Annotated
sections 40-35-113 and -114; (6) any statistical information provided by the administrative
office of the courts as to sentencing practices for similar offenses in Tennessee; and (7) any
statement the defendant made in the defendant's own behalf about sentencing. See T.C.A.
§ 40-35-210 (2010); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial
court must also consider the potential or lack of potential for rehabilitation or treatment of
the defendant in determining the sentence alternative or length of a term to be imposed.
T.C.A. § 40-35-103 (2010).
With regard to alternative sentencing, Tennessee Code Annotated section 40-35-
102(5) (2010) provides as follows:
In recognition that state prison capacities and the funds to build and maintain
them are limited, convicted felons committing the most severe offenses,
possessing criminal histories evincing a clear disregard for the laws and morals
of society, and evincing failure of past efforts at rehabilitation shall be given
first priority regarding sentencing involving incarceration.
20
A defendant who does not fall within subdivision (5) of Tennessee Code Annotated
section 40-35-102, “and who is an especially mitigated offender or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” T.C.A. § 40-35-
102(6). Generally, defendants classified as Range II or Range III offenders are not to be
considered as favorable candidates for alternative sentencing. T.C.A. § 40-35-102(6).
Additionally, we note that a trial court is “not bound” by the advisory sentencing guidelines;
rather, it “shall consider” them. T.C.A. § 40-35-102(6) (emphasis added). Defendant in this
case is a career offender. Therefore, he is not a favorable candidate for alternative
sentencing. T.C.A. § 40-35-102(6)(A).
Even if a defendant is a favorable candidate for alternative sentencing under
Tennessee Code Annotated section 40-35-102(6), a trial court may deny an alternative
sentence because:
(A) Confinement is necessary to protect society by restraining a defendant who
has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective deterrence
to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.
T.C.A. § 40-35-103.
A defendant is not eligible for probation, whether full probation, split confinement,
or periodic confinement, unless he is sentenced to serve ten years or less. Tenn. Code Ann.
§ 40-35-303(a)(2013 Supp.). Defendant is ineligible for probation on his twelve-year
sentence for promotion of methamphetamine manufacture. However, he is eligible for
probation on the six-year sentence for failure to appear because the sentence actually
imposed was ten years or less. See T.C.A. § 40-35-303(a).
Defendant specifically argues that he should have been sentenced to community
corrections. Being sentenced to community corrections is not an entitlement. State v.
Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App. 1997) (“The Community Corrections Act
was never intended as a vehicle through which offenders could escape incarceration.”). The
Community Corrections Act was meant to “[e]stablish a policy within the state to punish
selected, nonviolent felony offenders in front-end community based alternatives to
21
incarceration, thereby reserving secure confinement facilities for violent felony offenders [.]”
Tenn. Code Ann. § 40-36-103(1) (2006); see also State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). Pursuant to statute, persons who satisfy all of the following minimum criteria
are eligible for participation in a community corrections program:
(A) Persons who, without this option, would be incarcerated in a correctional
institution;
(B) Persons who are convicted of property-related, or drug or alcohol-related
felony offenses or other felony offenses not involving crimes against the
person as provided in title 39, chapter 13, parts 1-5;
(C) Persons who are convicted of nonviolent felony offenses;
(D) Persons who are convicted of felony offenses in which the use or
possession of a weapon was not involved;
(E) Persons who do not demonstrate a present or past pattern of behavior
indicating violence; [and]
(F) Persons who do not demonstrate a pattern of committing violent offenses.
Tenn. Code Ann. § 40-36-106(a)(1)(A)-(F) (2006). However, persons who have already
been sentenced to incarceration or who are on escape at the time of consideration will not be
eligible, even if they meet these criteria. See Tenn. Code Ann. § 40-36-106(a)(2) (2006).
Even though an offender meets the minimum requirements for eligibility, he or she
is not automatically entitled to participation in a community corrections program. See State
v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App. 1998); State v. Taylor, 744 S.W.2d 919, 922
(Tenn. Crim. App. 1987). Rather, the Act provides that the criteria shall be interpreted as
minimum standards to guide a trial court's determination of whether that offender is eligible
for community corrections. See Tenn. Code Ann. § 40-36-106(d) (2006).
At the sentencing hearing, the trial court reviewed all of Defendant’s prior convictions
and noted that he was a career offender. The trial court also made the following findings:
Then the issue becomes alternative sentencing, and I do agree with the
General’s belief with regard to both probation and community corrections
when we’re looking at the, the 12 years in this situation. But in this particular
situation, I believe that any presumption in favor of alternative sentencing is,
22
is tremendously overcome in this particular case by this man’s history. And
I think it’s important here to say, as I discussed when we were, when one of
the witnesses was testifying, we’re not looking at the distinction between a
paper record and, and something else. This paper record reflects how he’s
lived his life and what he’s done.
We’re looking at a time period of roughly 17 years. And in that time period,
he’s received sentences which total 49 years. Now, some of them were
concurrent sentences, so I’m not saying if he served them all, he would have
had a half a century in the penitentiary. But if you add them all up, you’re
going to, you’re going to get what I got, which I believe is the 49 years. And
I’m not talking about today, I’m talking about before today, so. There are
multiple clusters over this time period. These are not in the remote past. They
spread over the entire time period of his 17-year history.
Yes, I agree completely that meth is a major factor in his, in his problems. No
doubt about that. No doubt about that. And, apparently, was part of what got
him on the wrong path to begin with at the ripe old age of 19. Respectfully - -
and, and meth is an overwhelming problem. It’s one that’s drowning us here
in this district right now, and I would agree with the suggestion that the
criminal justice system by itself will not prevail over this problem.
It’s going to take the efforts of a lot of the people, including people using
faith-based rehabilitation. It’s going to take that. When someone has reached
the point where this gentleman has reached, however, I do - - a particular
program that does not require them and, I guess, cannot require them to stay,
that would allow them to leave whenever they look the notion to is the absolute
opposite of what this man needs. That is not what he needs. He’s got to be
restricted for an extended period of time in order to have any hope of recovery
from this problem.
And that is not criticism of the folks in Sevierville [where Defendant desired
to go to drug treatment]. I, I want us to have facilities that are medical
facilities, that are psychiatric, and and facilities that are neither for the - - that
are faith-based for the appropriate situation. And I like the idea that it’s free,
but it is, he is extremely ill-suited for that particular program because he’s got
to be restrained. And that’s established without at [sic] doubt by his long
history of criminal activity and not, not living within the restrictions of his
release into the public.
23
So, respectfully - - I mean, he didn’t finish this program. Now, he had a
legitimate reason for coming back, but he didn’t finish the program when he
was there. And I do believe it, all that occurred in 2013. I think the one
witness was just mistaken about the year, and that’s an innocent mistake.
Has he taken responsibility for what he’s done? No. No. I could not possibly
reach that conclusion in this case, not because he insisted on having a jury
trial, that’s his absolute right. I, I’m not considering that at all and wouldn’t.
But when you look back over the history, and, for instance, saying, looking
back on the 3/8/03 incidents and he was not guilty of those, and well, I didn’t
have a preliminary hearing, and I was in the wrong place at the wrong time, he
is either the least lucky person in the world who until now has had the worse
lawyers in the world, or he’s not yet taking responsibility for what meth has
done to his life. He’s not there yet. He looks so much healthier than when I
first saw him, when we first locked him up, and I think incarceration is going
to extend his life, quite frankly.
But looking at the factors I’m supposed to consider, and even with a
presumption in favor of alternative sentencing, I find that that presumption is
overcome in a very dramatic way. I find that confinement is absolutely
necessary to protect society from someone, this defendant, with a long criminal
history. I find that measures less restrictive have recently and frequently
failed.
I find that there is a complete lack of the potential for rehabilitation in the
absence of incarceration and that the risk of committing another crime on any
king of alternative sentencing in his case would be not only a great risk but
almost an inevitability. So, looking at all the factors, I find that he is not an
appropriate candidate for alternative sentencing, which is really, as a practical
matter, the only issue before me today.
The record supports the trial court’s denial of community corrections for Defendant.
Defendant is not entitled to community corrections because of his past convictions for
vehicular homicide and facilitation of aggravated robbery. See T.C.A. § 40-36-106(a)(1)(E)
and (F). However, despite his past convictions for violent offenses Defendant contends that
he is eligible for community corrections under the “special needs” provision of the statute.
The “special needs” exception allows offenders “who would be usually considered unfit for
probation due to histories of chronic alcohol or drug abuse, or mental health problems, but
whose special needs are treatable and could be served best in the community” to be eligible
24
for community corrections. T.C.A. § 40-36-106(c). Again, this specific issue was not
addressed by the State. Therefore, the State waived its argument as to this particular issue.
In any event, in order to be considered eligible for community corrections under the “special
needs” provision, the trial court must first find that the defendant is eligible for probation.
State v. Grigsby, 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997); State v. Boston, 938 S.W.2d
435, 438 (Tenn. Crim. App. 1996); and State v. Stanten, 787 S.W.2d 934, 936 (Tenn. Crim.
App. 1989). In this case, Defendant is not eligible for probation on his sentence for
promotion of methamphetamine manufacture because the sentence is twelve years. Tenn.
Code Ann. § 40-35-303(a)(2013 Supp.). Additionally, Defendant cannot be sentenced to
community corrections for his six-year sentence for failure to appear because we affirm his
sentence to incarceration for the twelve-year sentence. T.C.A. § 40-36-106 (a)(2)(“Persons
who are sentenced to incarceration or are on escape at the time of consideration will not be
eligible for punishment in the community.”). We also note that Defendant is not entitled to
community corrections based on his repeated failure to comply with sentences involving
release in the community. The presentence report reflects that Defendant has two violations
of parole and one violation of probation in the past.
We conclude that the sentencing decision was in compliance with the purposes and
principles listed by statute. Bise, 380 S.W.3d at 709-10. Defendant is not entitled to relief.
For the foregoing reasons, we affirm the judgments of the trial court.
________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
25