State v. Joe Green ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1999 SESSION
FILED
STATE OF TENNESSEE, * C.C.A. # 02C01-9711-CC-00429
Appellee, * CARROLL COUNTY
August 20, 1999
VS. * Hon. C. Creed McGinley, Judge
JOE MICHAEL GREEN, * (Sale of Controlled Substance)
Cecil Crowson, Jr.
Appellant. *
Appellate Court Clerk
For Appellant: For Appellee:
Marcus M. Reaves, Attorney Paul G. Summers
313 East Lafayette Attorney General and Reporter
Jackson, TN 38301
Michael E. Moore
Solicitor General
J. Ross Dyer
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
Eleanor Cahill
Assistant District Attorney General
Huntingdon, TN 38344
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Joe Michael Green, was convicted of the sale of a
controlled substance. The trial court imposed a Range I sentence of eleven years
and a $10,000.00 fine. In addition to his challenge to the sufficiency of the
evidence, the defendant contends that the trial court should have provided
instructions on a missing witness, should have granted a new trial based upon newly
discovered evidence, and should have granted a more lenient sentence.
We find no error and affirm the judgment of the trial court.
On the evening of January 2, 1997, Steve Lee, a criminal investigator
with the district attorney general's office and the Director of the Drug Task Force in
Carroll County, met with a drug informant, Sylvester Lee Island, to arrange a
purchase of drugs from the defendant. Before Island attempted to arrange the
transaction, Lee searched Island, gave him $100.00 in cash, and provided him with
a transmitter. Lee then followed Island, who drove to the defendant's residence
located near a housing project. Lee was able to maintain audio surveillance as
Island met with the defendant and received instructions to return to an apartment he
shared with Jarhonda Parker and wait. After twenty to twenty-five minutes, the
defendant, who was joined by a man named Marcus, arrived at Island's apartment
and sold him crack cocaine for $100.00.
Meanwhile, Lee recorded the entire conversation. After the defendant
left, Island provided Lee with the cocaine and placed his initials and the date on the
plastic container.
At trial, Island, who was compensated in the amount of $100.00 for
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each of his undercover purchases, testified that the defendant had come to his
residence earlier in the day to ask if he would like to buy some crack. Because the
defendant refused to sell anything less than a "$100.00 piece," Island made
arrangements to make a purchase in that amount later in the evening. He testified
that he went to the defendant's residence between 7:00 and 7:15 P.M. and was
directed to return to his apartment and wait. Island, who was accompanied by his
girlfriend, Ms. Parker, followed the defendant's directions. Within twenty-five
minutes, the defendant arrived in a yellow Cadillac and sold Island "three stones" for
$100.00. When presented with the initialed plastic bag at trial, Island was able to
identify the specific drugs he had purchased.
Lisa Mays, a forensic scientist with the TBI Crime Laboratory in
Jackson, tested the drugs Island had purchased from the defendant. She confirmed
that the drugs contained a cocaine base weighing .7 gram.
The defendant's wife, Dorothy R. Green, testified for the defense. She
claimed that the defendant, who is disabled, received a visit from Island on
December 3. She denied, however, that Island visited their residence on either
January 2, the date of the transaction, or the following day. Joellen Kee, also called
as a defense witness, testified that Island had asked her to make a drug purchase
on his behalf. She claimed that Island used drugs and that she had never seen the
defendant sell drugs to him. Ms. Kee admitted that she had previously been
convicted on six counts of the sale of crack cocaine.
Initially, the defendant claims that the informant, who had prior
convictions of possession of forged instruments, felony sale of counterfeit controlled
substances, and felony theft, was not credible and that there were inconsistencies in
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the proof that warranted a finding of not guilty. When, however, a defendant
challenges the sufficiency of the evidence, the relevant question is whether, upon a
review of the testimony in the light most favorable to the state, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). The state is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which might be drawn therefrom. State v. Cabbage, 571
S.W.2d 832 (Tenn. 1978). This court may neither reweigh nor reevaluate the
evidence. Id. Nor may this court substitute its inferences for those drawn by the
trier of fact. Likas v. State, 286 S.W.2d 856 (Tenn. 1956). All questions involving
the credibility of witnesses, the weight and value to be given the evidence, and all
factual issues are to be resolved by the trier of fact. State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987).
By the use of these guidelines, this court must find that the evidence
was sufficient. The jury was entitled to accredit the testimony of Island, regardless
of his prior criminal record. The Drug Task Force criminal investigator and the
audiotapes of the transaction corroborated the testimony of the drug informant. In
our view, the testimony offered by the state, as accredited by the jury, clearly
established each and every element of the sale of cocaine. See Tenn. Code Ann. §
39-17-417(a)(3) and (c)(1). It was the jury's prerogative to resolve the conflicting
testimony. That the jury chose to believe the witnesses for the state is not
erroneous.
The defendant also contends that he was entitled to a missing witness
instruction due to the absence of the drug informant's girlfriend, Ms. Parker. The
rule provides that when there is "'a reasonable assurance that it would have been
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natural for a party to have called the absent witness but for some apprehension
about his [or her] testimony,' an inference may be drawn by the jury that the
testimony would have been unfavorable." State v. Francis, 669 S.W.2d 85, 89
(Tenn. 1984) (quoting Burgess v. United States, 440 F.2d 226, 237 (D.C. Cir.
1970)). This rule was established in Graves v. United States, 150 U.S. 118 (1893).
While the original rule in Graves created a presumption of the unfavorability of the
testimony, the rule is now generally characterized as authorizing a permissive
inference. Id.; State v. Jones, 598 S.W.2d 209, 224 (Tenn. 1980).
In Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979), our supreme
court held that a party may comment about an absent witness when the evidence
shows as follows:
(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.
In our view, the trial court did not err by declining to give the instruction. Initially, Ms.
Parker did not have a relationship with the state. She was neither employed by the
Drug Task Force nor received any compensation for her participation. Although the
transaction took place at Ms. Parker's apartment, the location of the transaction was
established at the directive of the defendant. Furthermore, there is nothing in the
record to indicate that Ms. Parker was unavailable to the defendant. She was listed
as a possible witness for the state and the record does not indicate any effort on the
part of the defendant to make contact with the witness. Absent a showing the
witness was not equally available to both parties, the missing witness rule does not
apply. Conboy v. State, 455 S.W.2d 605, 611 (Tenn. Crim. App. 1970). Under
circumstances similar to these, our supreme court has ruled that there was nothing
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to suggest that the relationship between the missing witness and the state would
naturally incline the witness to testify more favorably. See State v. Bigbee, 885
S.W.2d 797 (Tenn. 1994).
As his next issue, the defendant contends that the trial court should
have granted his motion for new trial based upon newly discovered evidence. He
argues that he learned of two of the three felony convictions of Island after the trial
and that he had become aware that Island had moved from McKenzie, Tennessee,
where the crime was committed, prior to January 2, 1997, the date of the offense.
To warrant a new trial on the basis of newly discovered evidence, the
defendant must show that (1) he used reasonable diligence to discover the
information prior to trial; (2) the evidence is material; and (3) the evidence is likely to
have changed the result. State v. Goswick, 656 S.W.2d 355, 359 (Tenn. 1983). A
new trial will not be granted when the newly discovered evidence would have no
effect other than to impeach the testimony of a witness. State v. Sheffield, 676
S.W.2d 542 (Tenn. 1984); State v. Burns, 777 S.W.2d 355, 361 (Tenn. Crim. App.
1989).
The trial court considered the new evidence offered by the defense
and determined that it was not likely to have changed the result. The trial court
determined that Island had been cross-examined vigorously as to his prior criminal
record and that the jury was well aware that he had a felony record. It concluded
that the evidence of the defendant's guilt was so strong and persuasive that the new
evidence would not have caused a different result.
When the trial court has denied a motion for new trial based upon
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newly discovered evidence, that decision may not be disturbed on appeal unless
there is an abuse of discretion. State v. O'Guinn, 641 S.W.2d 894 (Tenn. Crim.
App. 1982). In our view, there has been no abuse of discretion in this instance.
While the evidence is clearly material, it is neither evident that the defendant
exercised reasonable diligence prior to trial to discover the additional evidence nor
apparent that the quality of the evidence is likely to have changed the result. For
those reasons, this court must conclude that the issue is without merit.
Finally, the defendant complains that the trial court should have
granted his request for placement in the community corrections program. He also
complains that the sentence should have been for nine years rather than eleven
years. The defendant, forty-three years of age, is a diabetic, has congestive heart
failure, gout, and high blood pressure. He asserts that the trial court failed to
consider that no one had been harmed by his offense.
When there is a challenge to the length, range, or manner of service of
a sentence, it is the duty of this court to conduct a de novo review with a
presumption that the determinations made by the trial court are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). See
State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission
Comments provide that the burden is on the appealing party to show the impropriety
of the sentence.
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
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sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-
35-102, -103, and -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App.
1987).
In calculating the sentence for Class B, C, D, or E felony convictions,
the presumptive sentence is the minimum within the range if there are no
enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there are
enhancement factors but no mitigating factors, the trial court may set the sentence
above the minimum. Tenn. Code Ann. § 40-35-210(d). A sentence involving both
enhancement and mitigating factors requires an assignment of relative weight for
the enhancement factors as a means of increasing the sentence. Tenn. Code Ann.
§ 40-35-210(e). The sentence may then be reduced within the range by any weight
assigned to the mitigating factors present. Id.
The purpose of the Community Corrections Act of 1985 was to provide
an alternative means of punishment for "selected, nonviolent felony offenders in
front-end community based alternatives to incarceration." Tenn. Code Ann. §
40-36-103. The Community Corrections sentence provides a desired degree of
flexibility that may be both beneficial to the defendant yet serve legitimate societal
aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant
meets the minimum requirements of the Community Corrections Act of 1985,
however, does not mean that he is entitled to be sentenced under the Act as a
matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).
The following offenders are eligible for Community Corrections:
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(1) Persons who, without this option, would be
incarcerated in a correctional institution;
(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 13, parts 1-5;
(3) Persons who are convicted of nonviolent felony
offenses;
(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;
(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;
(6) Persons who do not demonstrate a pattern of
committing violent offenses; and
(7) Persons who are sentenced to incarceration or on
escape at the time of consideration will not be eligible.
Tenn. Code Ann. § 40-36-106(a).
In Ashby, our supreme court encouraged the grant of considerable
discretionary authority to our trial courts in matters such as these. 823 S.W.2d at
171. See State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be
bottomed upon its own facts." Taylor, 744 S.W.2d at 922. "It is not the policy or
purpose of this court to place trial judges in a judicial straight-jacket in this or any
other area, and we are always reluctant to interfere with their traditional discretionary
powers." Ashby, 823 S.W.2d at 171.
The trial court rejected placement into a community corrections
program because the defendant had a prior felony conviction related to illegal drugs.
It concluded that the defendant committed this offense while on parole for the prior
felony. In our view, the trial judge who saw and heard from the defendant firsthand,
properly exercised his discretion. Moreover, the trial court found certain
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enhancement factors applicable:
(1) that the defendant had a prior history of criminal
convictions or criminal behavior in addition to those
necessary to establish the appropriate range; and
(2) that the offense was committed while the defendant
was on parole.
Tenn. Code Ann. § 40-35-114(1) & (13)(B). The defendant does not suggest how
the trial court erred in assessing the length of the sentence. Because there was a
basis to enhance the sentence over and above the minimum, we find no fault in the
assessment.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
Thomas T. Woodall, Judge
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