State v. Freddie Simmons ( 1997 )


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  •           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE         FILED
    AUGUST 1997 SESSION
    September 19, 1997
    Cecil W. Crowson
    Appellate Court Clerk
    STATE OF TENNESSEE,                 )
    )    NO. 01C01-9609-CC-00409
    Appellee,                     )
    )    FRANKLIN COUNTY
    VS.                                 )
    )    Hon. Thomas W. Graham, Judge
    FREDDIE SIMMONS,                    )
    )    (Casual Exchange, Schedule II)
    Appellant.                    )
    FOR THE APPELLANT:                       FOR THE APPELLEE:
    PHILIP A. CONDRA                         JOHN KNOX WALKUP
    District Public Defender                 Attorney General and Reporter
    12th Judicial District
    204 Betsy Pack Drive                     JANIS L. TURNER
    P. O. Box 220                            Assistant Attorney General
    Jasper, TN 37347                         450 James Robertson Parkway
    Nashville, TN 37243-0493
    JAMES MICHAEL TAYLOR
    District Attorney General
    WILLIAM COPELAND
    Assistant District Attorney General
    Franklin County Courthouse
    Winchester, TN 37398
    OPINION FILED:
    AFFIRMED AS MODIFIED
    JOE G. RILEY,
    JUDGE
    OPINION
    The defendant, Freddie Simmons, was originally indicted for sale or delivery
    of a Schedule II controlled substance, crack cocaine. He was convicted by a
    Franklin County jury of casual exchange of a Schedule II substance, a Class A
    misdemeanor. The jury assessed a $2,500 fine. At sentencing, defendant was
    found to be a Range I Standard Offender and sentenced to six (6) months in the
    Franklin County jail to be served “day for day,” to run consecutively to a prior escape
    sentence. On appeal, he presents the following issues: (1) that he was denied a fair
    trial by improper trial court comments in the presence of the jury, and comments
    that showed bias toward the state outside the hearing of the jury; (2) that the trial
    court erred in refusing to charge the jury on an absent material witness; and (3) that
    the sentence imposed was improper. We affirm the conviction but modify the
    sentence.
    FACTS
    Although sufficiency of the evidence is not at issue, a brief recitation of the
    facts is appropriate. The state’s proof at trial showed that on July 27, 1992, State
    Trooper Guinn Hall was working an undercover narcotics operation in Franklin
    County. At approximately 6:40 p.m., while accompanied by a confidential informant
    and being monitored by a surveillance team through the use of a body wire, Trooper
    Hall approached defendant in a Franklin County park. He paid defendant $40 for
    a bag containing some pieces of what appeared to be crack cocaine.
    Tildon Stubblefield, an investigator for the Tullahoma Police Department, did
    not witness any of the transaction between Trooper Hall and defendant but testified
    he monitored Trooper Hall’s voice as Hall attempted to make the crack cocaine buy.
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    The TBI lab technician, Randall Nelson, identified the “rock” in the plastic bag
    as that which Trooper Hall had brought to the lab on July 28, 1992. The substance
    proved to contain cocaine base.
    TRIAL COURT COMMENTS
    Defendant contends that he was denied a fair trial due to improper trial court
    comments both within and without the hearing of the jury. Defendant complains
    that those comments made in the presence of the jury during voir dire and closing
    argument removed the presumption of innocence and, combined with comments
    made outside the hearing of the jury, show that the trial court was biased toward the
    state.
    A.
    During voir dire while questioning a juror on the presumption of innocence,
    Philip Condra, defense counsel, elicited the following remark by the juror:
    I don’t think any of us would be here, or he would be here if
    there weren’t some evidence of being guilty.
    Upon Mr. Condra’s motion to strike the juror for cause, the trial court
    responded:
    Well, I’m not sure that what she’s saying isn’t correct. That
    obviously we wouldn’t be here if there wasn’t something. I mean
    obviously, we don’t just come to court.
    Upon Mr. Condra’s request, a bench conference followed wherein Mr.
    Condra objected to both the comments of the juror and the court.              The court
    responded by addressing the jury directly:
    All right, ladies and gentlemen, let me clear up something if
    there’s any confusion to this at all. My response to you that there,
    obviously, had to be something or we wouldn’t be having a trial,
    merely states a truism. You know you get here because a grand jury
    decides that there is a reason for a trial. It has not asked whether
    somebody is guilty or innocent, and it’s [sic] indictment, which is the
    issue that’s drawn for you, is not any proof whatsoever of guilt. It is
    only a finding that there should be a trial, that it wouldn’t be
    unwarranted to have a trial, and to that extent that’s the only basis
    that this Court has made any statements at all to you, because in
    response to the juror’s question that there must be some reason we’re
    here. Obviously, there’s some reason we’re here or we wouldn’t be
    here, but it’s not something that amounts to a presumption of guilt in
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    any fashion whatsoever. You’re going to decide that question. That’s
    why we have you in here. And you’re going to decide it by a very high
    standard, beyond a reasonable doubt. So I think that’s enough said
    on that issue.
    These comments concerning the grand jury process do not rise to the level
    condemned in State v. Onidas, 
    635 S.W.2d 516
     (Tenn. 1982). There was no
    attempt to bias or prejudice the jury, nor is there any indication of bias in the context
    of this exchange. Although trial courts should be very cautious in referring to grand
    jury proceedings, these comments did not prejudice the defendant.
    B.
    The questioning of the juror continued, and Mr. Condra asked if she would
    require the defendant to offer any proof. The Court intervened by saying, “[t]here
    is no way for her to answer that question as you’ve asked it.” A bench conference
    ensued, during which defense counsel noted the juror’s inability to answer and its
    implication that the presumption of innocence had been unfairly removed. The trial
    court then responded:
    If I was -- I’m going to require you to put on proof if the
    presumption has been removed by the proof presented by the state.
    You don’t have to, but I’m going to require . . .
    ....
    . . . If you want me to find the person not guilty, I -- that’s what
    defense proof is all about, to reduce something that’s been raised by
    the State.
    This remark was made outside the hearing of the jury and could not have
    influenced the jury’s verdict. Ultimately, the juror was dismissed by peremptory
    challenge. As to the question of bias, this Court interprets the trial court’s remarks
    as illustrative only. The use of the first person “I” notwithstanding, it appears from
    the transcript of the proceedings that the court was simply pointing out that if the
    state proved its case of guilt beyond a reasonable doubt, then a conviction would
    be appropriate absent some kind of countervailing evidence. We find that this
    language does not show bias.
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    C.
    The final comment attacked by defendant occurred during closing argument.
    As Mr. Condra embarked upon argument regarding the “missing witness charge,”
    the state objected and the court responded:
    It [the charge] hasn’t been discussed. If you want to discuss
    that matter, we need to do that at some point outside the jury’s
    presence to consider whether you want to go forward with that
    argument. There is some question in the Court’s mind. I’d want to
    hear from both of you on that issue.
    Upon review of these and other comments of the trial court, we find that
    defendant was not deprived of a fair trial by the trial court’s comments.
    THE ABSENT MATERIAL (“MISSING”) WITNESS CHARGE
    Next, the defendant challenges the trial court’s refusal to charge the jury on
    an absent material witness. More specifically, he claims that the confidential
    informant had knowledge of material facts from the night in question, but the state
    did not call the informant as a witness in its case-in-chief. Therefore, he alleges that
    the essential requirements for the missing witness instruction were established, and
    the trial court erred in refusing the charge.
    Both defendant and the state rely on Delk v. State, 
    590 S.W.2d 435
     (Tenn.
    1979), and State v. Francis, 
    669 S.W.2d 85
     (Tenn. 1984). This Court in State v.
    Eldridge, 
    749 S.W.2d 756
    , 758 (Tenn. Crim. App. 1988), stated:
    Our Supreme Court has held that a party may comment about
    an absent witness when the evidence shows that:
    (1) the witness had knowledge of material facts;
    (2) that a relationship exists between the witness and the party that
    would naturally incline the witness to favor the party; and
    (3) that the missing witness was available to the process of the court
    for trial.
    Delk v. State, 
    590 S.W.2d 435
    , 440 (Tenn. 1979). The requirements
    set forth in Delk are to be strictly construed. State v. Francis, supra at
    89.
    In order to justify a missing witness instruction, the evidence
    must show that one of the parties had peculiarly available to him a
    witness with peculiar knowledge of the material facts at issue.
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    (emphasis added); see also State v. Boyd, 
    867 S.W.2d 330
    , 337 (Tenn. Crim. App.
    1992).
    The proof at trial showed that Trooper Hall was the person who actually
    purchased the cocaine from defendant. His testimony was undisputed. The
    informant was only a witness to the transaction. There is no proof that the informant
    would have had any “peculiar knowledge of the material facts at issue,” but rather
    it appears his testimony would have been cumulative. The trial court concluded,
    based on all the proof at trial, that the informant was known to both the state and
    defendant. The evidence does not preponderate against this finding. Therefore,
    we find that the informant did not have “peculiar knowledge” and was not “peculiarly
    available” to the state.
    Furthermore, the identity of the defendant was clearly established at trial.
    The defendant was allowed to argue to the jury the state’s failure to call the
    informant as a witness, yet the jury obviously believed Trooper Hall. Given the facts
    presented by the record before us, we find no prejudicial error in the refusal to give
    the missing witness jury instruction.
    SENTENCING
    In his final assignment of error, the defendant complains that the trial court
    erred in requiring the six-month sentence to be served “day for day” and
    consecutively to his escape sentence.
    A.
    The trial court ordered that defendant serve 100% of this misdemeanor
    sentence. The misdemeanor sentencing statute provides for a maximum of 75%
    service. Tenn. Code Ann. §40-35-302(d). Our Supreme Court has held that 100%
    service may be ordered in DUI cases only. State v. Palmer, 
    902 S.W.2d 391
    , 393
    (Tenn. 1995); see also State v. Beech, 
    744 S.W.2d 585
     (Tenn. Crim. App. 1987).
    6
    Therefore, the trial court erred in ordering the defendant to serve more than 75%
    of the misdemeanor sentence.
    B.
    Finally, defendant contends that the trial court erred in ordering this sentence
    to be served consecutively to his prior sentence for felony escape. In sentencing
    defendant the trial court noted defendant’s extensive prior record. It further appears
    in our de novo review that consecutive sentencing reasonably relates to the severity
    of the offenses and is necessary to protect the public from further criminal conduct
    by the defendant. See State v. Wilkerson, 
    905 S.W.2d 933
     (Tenn. 1995). Even
    though the felony escape was actually committed after the instant offense, we find
    no impropriety in consecutive sentencing since his parole on the felony escape had
    already been revoked prior to the sentencing on the instant offense.
    CONCLUSION
    We find that defendant was afforded a fair trial and that consecutive
    sentencing was justified; accordingly, we affirm the trial court judgment in these
    respects. However, we find that the percentage of the sentence must be reformed
    to 75% as set out by statute.
    JOE G. RILEY, JUDGE
    CONCUR:
    J. CURWOOD WITT, JUDGE
    JOE H. WALKER, III, SPECIAL JUDGE
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