State of Tennessee v. Alice Smotherman ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 16, 2005
STATE OF TENNESSEE v. ALICE SMOTHERMAN
Direct Appeal from the Circuit Court for Wayne County
No. 13269 Jim T. Hamilton, Judge
No. M2004-01724-CCA-R3-CD - Filed June 22, 2005
The Defendant, Alice Smotherman, pled guilty to possession of a Schedule IV controlled substance
for resale, a Class D felony, after the trial court denied her motion to suppress evidence seized
pursuant to a search warrant. As part of the plea agreement, she reserved the right to appeal a
certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The
certified question reserved for review was "whether or not the affidavit in the search warrant is
sufficient to establish truthfulness, reliability and veracity of information that [an] unnamed third
party conveyed to affiant which established probable cause for the issuance of the search warrant;
and whether or not the search warrant complied with Rule 41(c) of the Tennessee Rules of Criminal
Procedure." Because the record on appeal is incomplete, we must conclusively presume the ruling
of the trial court was correct. Accordingly, we affirm the decision of the trial court.
Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed
THOMAS T. WOODA LL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID G. HAYES, J., joined.
J. Daniel Freemon, Lawrenceburg, Tennessee, for the appellant, Alice Smotherman.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General,
T. Michel Bottoms, District Attorney General; and Douglas Dicus, Assistant District Attorney
General, for the appellee, the State of Tennessee.
OPINION
Waynesboro police executed a search warrant for Defendant's residence and discovered a
large number of pills and a large amount of cash, which served as the basis for Defendant's
indictment for possession of a Schedule IV controlled substance for resale, a Class D felony.
Defendant filed a motion to suppress any evidence obtained as a result of the search warrant, arguing
that the affidavit in support of the search warrant was insufficient under Tennessee law because it
failed to establish probable cause. The trial court denied Defendant's motion to suppress following
a suppression hearing. In its order denying Defendant's motion to suppress, the court stated:
From the motion filed by the defendant, statements of counsel, witnesses and the
entire record as a whole, . . . [t]he Court hereby finds that the search warrant is valid
on its face and contains probable cause for the issuance of the warrant and the search
of the defendant's premises. The Court finds that the designation of the informant in
the search warrant as an "Agent" is sufficient to allow a reasonable magistrate to
conclude that the information is coming from a law enforcement officer and based
upon reliable information. Therefore, the defendant's motion in this matter is denied.
On appeal, Defendant argues that the warrant failed to comply with Tennessee Rule of
Criminal Procedure 41(c) because the affidavit supporting the warrant failed to state the basis of the
reliability of the information obtained by the informant and failed to allege facts that would show
the veracity of the informant. Defendant also argues that the information provided in the affidavit
supporting the warrant failed to establish probable cause to support the issuance of the warrant. The
State argues that Defendant has waived the issue because the record on appeal does not contain a
transcript of the suppression hearing.
The State is correct in its assertion that the record on appeal does not contain a transcript
of the suppression hearing. Furthermore, we note that while copies of what purport to be the search
warrant and the affidavit supporting the warrant are included in a supplemental technical record,
nothing in the record indicates how either came to be in that record. Because the record does not
contain a transcript of the hearing on the motion to suppress, we do not know whether the search
warrant was made an exhibit during the suppression hearing. Nothing in the record before us
indicates that either the warrant or affidavit have been certified by the trial court or properly received
into evidence. As such, neither is properly a part of the record on appeal. In State v. Cooper, this
Court declined to review a denial of a motion to suppress where the search warrant and the affidavit
were not properly in evidence. 736 S.W.2d 125 (Tenn. Crim. App. 1987). We held:
Unfortunately, we are unable to resolve this issue on the merits because the search
warrant and the affidavit given in support of the search warrant were never
introduced into evidence. However, they have been included in what was formerly
referred to as the "technical record." An examination of the documents reveals no
indicia that they were made an exhibit at the suppression hearing or the trial; and they
have not been authenticated by the trial judge.
Id. at 131. This Court further held that "[t]he inclusion of a document in what has been commonly
referred to as the ‘technical record’ will not, as a matter of law, permit this Court to consider the
document when it has not been introduced as evidence or authenticated by the trial court." Id.; see
also State v. Melson, 638 S.W.2d 342, 351 (Tenn. 1982); Krause v. Taylor, 583 S.W.2d 603, 605-
606 (Tenn. 1979). Likewise, in State v. Brewer, this Court would not consider the merits of
suppression issues raised by the defendant when a copy of the search warrant was in the technical
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record and attached to the defendant's brief, but the copies had not been offered into evidence at the
suppression hearing nor authenticated by the trial court. 989 S.W.2d 349, 352-53 (Tenn. Crim. App.
1997). Accordingly, the search warrant and affidavit in support of the search warrant in the case
sub judice are not in evidence and cannot be considered on appeal.
When a party seeks appellate review there is a duty to prepare a record which conveys a fair,
accurate and complete account of what transpired with respect to the issues forming the basis of the
appeal. See Tenn. R. App. P. 24(a); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). Where the record is incomplete and does not contain the
necessary relevant material, such as a transcript of the proceedings relevant to an issue presented for
review, or portions of the record upon which the party relies, this Court is precluded from
considering the merits of an issue. Ballard, 855 S.W.2d at 560-61. Instead, we must conclusively
presume that the ruling of the trial court was correct in all particulars. Cooper, 736 S.W.2d at 131;
see State v. Jones, 623 S.W.2d 129, 131 (Tenn. Crim; App. 1981). Without being able to review the
transcript of the suppression hearing, the search warrant, or the affidavit in support of the search
warrant, we are unable to consider the merits of Defendant's challenge to the validity of the search
warrant, and must assume the ruling of the trial court on the issue was correct. There being no other
issues to address on appeal, we affirm the judgment of the trial court.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
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THOMAS T. WOODALL, JUDGE
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