State v. Williamson ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1997 SESSION
September 18, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR-00011
)
Appellee ) JOHNSON COUNTY
)
v. ) HON. LYNN W. BROWN,
) JUDGE
CECIL WILLIAMSON, )
) Introduction of contraband in a penal
Appellant ) institution
FOR THE APPELLANT FOR THE APPELLEE
David F. Bautista John Knox Walkup
District Public Defender Attorney General & Reporter
Gerald L. Gulley, Jr. Michael J. Fahey, II
Contract Appellate Attorney Assistant Attorney General
P.O. Box 1708 450 James Robertson Parkway
Knoxville, TN 37901-1708 Nashville, TN 37243-0493
(on appeal)
David E. Crockett
Robert Y. Oaks District Attorney
General
Assistant Public Defender
Main Courthouse Lisa Nidiffer Rice
Elizabethron, TN 37643-3328 Assistant District Attorney General
(at trial) Rte. 19 Box 99
Johnson City, TN 37601
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
The defendant was convicted of introducing marijuana into a penal
institution in violation of T.C.A. § 39-16-201 and was sentenced to serve six years.
The defendant raises the following issues:
I. The “punitive segregation” and other sanctions
applied to the appellant for possessing contraband
narcotics within a penal institution, and which are
described as “punishments” by the Tennessee
Department of Corrections, preclude subsequent
indictment and trial for the same offense on grounds of
double jeopardy.
II. The process by which prisoners who violate prison
rules against possession of illegal contraband are
selected for prosecution in state court is a selective
enforcement that is devoid of any rational basis, and
therefore a violation of the equal protection and due
process rights of the appellant.
III. The trial judge erred as a matter of law by denying
the motions for judgment of acquittal and a new trial,
where there was not sufficient evidence to sustain a
conviction of the appellant.
We affirm the judgment of the trial court.
The evidence introduced by the state, unrefuted by the defendant,
accredited by the jury and approved by the trial judge, shows:
On February 25, 1995, the defendant was working the child care
visitor’s center, where he had access to the visitation gallery, which would bring him
in contact with persons from outside the prison.
The defendant entered a toilet which was adjacent to the gallery and
which was under surveillance by guards. A guard observed the defendant putting
something into his rectum. The defendant was accosted by the guard and a search
revealed a string protruding from the defendant’s rectum. The defendant was
placed in a cell where any bowel movement he had could not be disposed of.
Within 24 hours, the defendant passed a package which contained marijuana.
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The defendant told the prison officials he was “muling” [delivering] the
marijuana to another inmate whom he would not name.
The defendant claims the evidence is insufficient to convict him of
introducing marijuana into the prison because there is no direct evidence of how he
got possession of the marijuana.
The defendant relies upon the case of State v. Hicks, 835 S.W.2d 32(Tenn. Crim. App. 1992) to support his argument. We believe Hicks is
distinguishable from this case because, in Hicks, the evidence clearly showed the
accused in that case was not involved in the introduction of the banned substance
(whiskey) into the prison but only moved the whiskey within the institution after it had
been deposited within the prison by others, unaided by the accused. Id. at 38.
The evidence in this case shows the defendant was in contact with
people who came into the prison where the defendant was working. The defendant
inserted the marijuana into his rectum in a bathroom adjacent to the place of contact
with people from outside the prison. The most reasonable conclusion to be drawn
from this is that the defendant, with the aid of someone outside the prison, was
involved in the introduction of the marijuana into the prison.
The trial judge properly instructed the jury on the law as it applies to
aiding and abetting the comission of a crime and in the requirements of the law
regarding convictions based on circumstantial evidence.
There is sufficient circumstantial evidence in the case to exclude any
other reasonable hypothesis than the guilt of the defendant of the offense charged,
and there is sufficient evidence for a reasonable trier of fact to find guilt beyond a
reasonable doubt.
The defendant may not prevail on the double jeopardy claim. In Ray v.
State, 577 S.W.2d 681 (Tenn. Crim. App. 1978), the Court held that the imposition
of prison discipline for the purposes of institutional control does not bar prosecution
for the criminal offense which gave rise to the prison discipline. We find no relevant
cases holding otherwise.
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The defendant claims the practice of the prison officials in referring
some, but not all, prisoners who commit crimes while incarcerated, denies him equal
protection of the law and violates his due process rights.
State officials may selectively prosecute some who commit crime and
not prosecute others who commit crime without violating equal protection or due
process rights of an accused. Yearwood v. State, 455 S.W.2d 612 (Tenn. Crim.
App. 1970); United States v. Allen, 954 F.2d 1160 (6th Cir. 1992).
Selective enforcement is unconstitutional when the selection process
is based upon arbitrary calssification of those to be prosecuted. Oyler v. Boles, 368
U.S. 448, 82 S. Ct. 501 (1962).
The defendant does not show that there is an arbitrary classification of
the state for which prosecution is reserved or that he is the member of any class
arbitrarily selected for prosecution. He, therefore, has failed to show any basis for
the dismissal of the indictment in this case.
The judgment of the trial court is affirmed.
John K. Byers, Senior Judge
CONCUR:
David H. Welles, Judge
Thomas T. Woodall, Judge
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