State v. Andre Parks ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
July 15, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 01C01-9709-CC-00389
Appellee, )
) LINCOLN COUNTY
VS. )
) HON. CHARLES LEE,
ANDRE PARKS, ) JUDGE
)
Appellant. ) (Sale of Cocaine)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN HARWELL DICKEY JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
MICHAEL D. RANDLES DARYL J. BRAND
(At Trial) Assistant Attorney General
Assistant District Public Defender Cordell Hull Building, 2nd Floor
218 North Main Street 425 Fifth Avenue North
Shelbyville, TN 37160 Nashville, TN 37243-0493
W. MICHAEL McCOWN
JULIE A. MARTIN District Attorney General
(On Appeal)
706 Walnut Street, Ste. 900-A WEAKLEY E. BARNARD
P. O. Box 426 Assistant District Attorney General
Knoxville, TN 37901-0426 Marshall County Courthouse
Room 407
Lewisburg, TN 37091
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
Defendant, Andre Parks, appeals his conviction by a Lincoln County jury of
the offense of selling cocaine under 0.5 grams, a Class C felony. He was
sentenced to a term of eight (8) years and eleven (11) months and denied
alternative sentencing. He presents the following issues for our review:
1. whether the evidence is sufficient to support the
guilty verdict;
2. whether the trial court erred in failing to suppress
the undercover agent’s in-court
identification of the defendant;
3. whether the trial court erred by admitting into
evidence the packages containing the cocaine since it
had defendant’s name marked on them; and
4. whether the trial court erred in sentencing the
defendant.
After a careful review of the evidence, we affirm the judgment of the trial court.
FACTS
The state’s proof showed that on June 20, 1996, undercover agent, Tommy
Biele, was a Dickson police officer on special assignment to the Seventeenth
Judicial District Drug Task Force in Lincoln County. He utilized an unmarked
vehicle containing audio and video equipment. At approximately 5:30 p.m. the
defendant approached Agent Biele’s vehicle. The agent was able to view the
defendant close up, face-to-face. As a police officer, Agent Biele had been trained
to “memorize everything you can about them before they leave.” The agent
requested of the defendant three (3) rocks of crack cocaine for $50. The defendant
handed the agent three (3) rocks, and the agent paid the defendant $50. The
transaction was videotaped and shown to the jury. The agent did not notice any
distinguishing marks or scars on the seller. Agent Biele was “100% certain” that the
defendant was the same person who sold him cocaine on the date in question.
The rocks were turned over to another officer. All officers in the chain of
2
custody identified the packaging. The substance was further identified by the
forensic chemist as containing 0.4 grams of cocaine base, a Schedule II controlled
substance.
At the conclusion of the state’s proof, the defendant offered no witnesses or
testimony. However, the defendant exhibited to the jury his arms which contained
scars.
The jury convicted the defendant of separate counts of selling and delivering
cocaine based upon this transacton. The delivery conviction was stricken by the
trial court, thus leaving the defendant with a conviction for the sale of cocaine under
0.5 grams.
SUFFICIENCY OF THE EVIDENCE
When reviewing the trial court's judgment, this Court will not disturb
a verdict of guilt unless the facts of the record and inferences which may be drawn
from it are insufficient as a matter of law for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Tenn. R. App. P. 13(e); State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In other words, this Court will not
reevaluate or reweigh the evidence brought out at trial. Since a verdict of guilt
removes the presumption of a defendant's innocence and replaces it with a
presumption of guilt, the defendant has the burden of proof on the sufficiency of the
evidence at the appellate level. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
The defendant was specifically identified as the person who sold the
controlled substance. The issue of identification is a question for the jury. State v.
Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). This issue was resolved
by the jury against the defendant. The chain of custody was properly shown, and
the substance was identified by the forensic chemist as cocaine. The evidence is
sufficient to support the verdict.
3
IN-COURT IDENTIFICATION
Defendant next contends Agent Biele’s in-court identification of the defendant
was tainted by a prior impermissibly suggestive photographic identification.
A.
Approximately one month after the drug transaction, another agent showed
Agent Biele a photograph of the defendant and inquired as to whether this was the
same person who sold him the drugs. Agent Biele identified the defendant in the
photograph as the same person who sold the drugs. The trial court found this
photographic identification was impermissibly suggestive and suppressed the use
of this identification as a part of the state’s case-in-chief. However, the trial court
found that an in-court identification was sufficiently reliable and independent from
the tainted photographic identification. The trial court allowed the in-court
identification of the defendant.
B.
Firstly, we note that the findings of fact of the trial court at a suppression
hearing will not be disturbed on appeal unless the evidence in the record
preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
C.
Secondly, convictions based on eyewitness identification at trial following a
pre-trial photographic identification will be set aside only if the photographic
identification was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377,
384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247,1253 (1968). We, nevertheless, recognize
4
that a pre-trial confrontation procedure may be unlawful if, under the totality of the
circumstances, the procedure is unnecessarily suggestive. Moore v. Illinois, 434,
411 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424, 433 (1977).
This Court must consider five factors in determining whether the in-court
identification is reliable enough to withstand a due process attack despite the
suggestiveness of the pre-trial identification. Neil v. Biggers, 409 U.S. 188, 199, 93
S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972); State v. Strickland, 885 S.W.2d at 88.
These factors are: (1) the opportunity of the witness to view the criminal at the time
of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’
prior description of the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the time between the crime and the
confrontation. Strickland, 885 S.W.2d at 88.
D.
In the case at bar Agent Biele had ample opportunity to view the defendant
face-to-face. As a police officer, Agent Biele was trained in the importance of
identification. Agent Biele had absolutely no doubt or hesitation that the defendant
was the person who sold him the drugs. The transaction was memorialized on
videotape. The trial court found that the in-court identification was not tainted by the
prior photographic identification. The evidence does not preponderate against the
trial court’s ruling.
This issue is without merit.
DEFENDANT’S NAME ON PACKAGE
Defendant next contends the admission into evidence of the drug envelopes
was prejudicial since his name had been written on them. We respectfully disagree.
One of the officers testified as to her role in the chain of custody. She
received the cocaine from another agent, packaged and sealed it, and wrote
5
identifying information on the envelopes. The defendant objected to their
introduction into evidence since the defendant’s name had been written on the
envelopes. Since the chain of custody had not been completely established at that
time, the exhibits were marked for identification purposes only. Subsequently, when
the chain of custody was completely established, the trial court admitted the exhibits
into evidence.
The defendant’s name was written on the envelopes for the purpose of
identifying evidence and establishing the chain of custody. Defendant was not
prejudiced by this procedure.
This issue is without merit.
SENTENCING
Defendant was sentenced as a Range II, Multiple Offender, to a term of eight
(8) years and eleven (11) months. The Multiple Offender range of punishment for
this Class C felony was not less than six (6) years nor more than ten (10) years.
See Tenn. Code Ann. § 40-35-112(b)(3). Alternative sentencing was denied.
Defendant now challenges the length of the sentence and the denial of alternative
sentencing.
A.
This Court’s review of the sentence imposed by the trial court is de
novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
presumption is conditioned upon an affirmative showing in the record that the trial
judge considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
If no mitigating or enhancement factors for sentencing are present, Tenn.
Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the
minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d
6
785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should start at the minimum sentence, enhance the minimum sentence within the
range for enhancement factors and then reduce the sentence within the range for
the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for
each factor is prescribed by the statute, as the weight given to each factor is left to
the discretion of the trial court as long as the trial court complies with the purposes
and principles of the sentencing act and its findings are supported by the record.
State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,
848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.
Nevertheless, should there be no mitigating factors, but enhancement factors are
present, a trial court may set the sentence above the minimum within the range.
Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638
(Tenn. Crim. App. 1994).
B.
The defendant concedes the trial court properly applied the following
enhancement factors:
(1) a previous history of criminal convictions in
addition to those necessary to establish the
appropriate range, Tenn. Code Ann. § 40-35- 114(1);
(2) a previous history of unwillingness to comply with
the conditions of release into the
community, Tenn. Code Ann. § 40-35-
114(8); and
(3) adjudications of prior delinquent acts as a
juvenile which would constitute a felony if
committed by an adult, Tenn. Code Ann. § 40- 3 5 -
114(20).
Defendant had prior convictions for forgery, evading arrest, felony theft,
selling Schedule IV drugs, passing worthless checks, assault and battery, contempt
of court, and simple assault. As a juvenile he had an adjudication for forgery. He
7
had a prior probation revocation. The three (3) enhancement factors were properly
applied.
C.
Defendant contends the trial court erred in finding that, due solely to the
nature of cocaine, the crime was committed under circumstances under which the
potential for bodily injury to a victim was great. See Tenn. Code Ann. § 40-35-
114(16). The trial court noted that this Court has conflicting opinions as to this
issue. See State v. Keel, 882 S.W.2d 410, 421 (Tenn. Crim. App. 1994); State v.
Millbrooks, 819 S.W.2d 441, 447 (Tenn. Crim. App. 1991). 1 Millbrooks applied this
factor finding the use of crack cocaine to be injurious to the human body. 819
S.W.2d at 447. Keel rejected the Millbrooks analysis in its application of this factor
to all cocaine cases; however, Keel recognized that some cocaine-related cases
can be committed under factual scenarios justifying the application of this factor.
882 S.W.2d at 421-22. We find Keel to contain the better analysis. See also State
v. Robert L. O’Neal, C.C.A. No. 01C01-9610-CC-00438, Marshall County (Tenn.
Crim. App. filed December 30, 1997, at Nashville).
In this case we find no particular circumstances causing a great potential for
bodily injury other than the nature of the substance itself. Accordingly, we find the
trial court erred in its application of this enhancement factor. Nevertheless, we note
that the trial court specifically stated it gave very little weight to this enhancement
factor in light of our conflicting opinions. Under these circumstances, a sentence
reduction due to the misapplication of this enhancement factor is not justified.
1
Permission to appeal was denied in Keel, while no permission to appeal was
sought in Millbrooks.
8
D.
Defendant further contends the trial court erred in refusing to recognize
mitigating factors. Specifically, defendant contends the trial court should have
considered his seeking treatment for cocaine addiction prior to his arrest and his
potential for rehabilitation. Defendant has an extensive prior criminal history.
Defendant has continued to use drugs and sell them to support his habit. We find
no error in the trial court refusing to recognize any mitigating factors.
E.
In summary, we find the trial court only erred in its application of one
enhancement factor. This does not necessarily entitle defendant to a reduction of
his sentence. See State v. Lavender, ___ S.W.2d ___ (Tenn. 1998). We find the
trial court’s determination of the length of sentence to be appropriate.
F.
Finally, defendant contends he should have received an alternative sentence.
He concedes he is not entitled to a presumption that he is a favorable candidate
since he is a Range II Offender. See Tenn. Code Ann. § 40-35-102(6).
Furthermore, defendant is not eligible for probation since the length of his sentence
exceeds eight (8) years. See Tenn. Code Ann. § 40-35-303(a). The only possible
alternative sentence the defendant could receive is participation in the community
corrections program.
9
G.
The Community Corrections Act establishes a program of community-based
alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §
40-36-103. A defendant is eligible for participation in a community corrections
program if the defendant satisfies several minimum eligibility criteria set forth at
Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all offenders
who meet these requirements are entitled to such relief. State v. Grandberry, 803
S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36-
106(d) provides that the eligibility criteria shall be interpreted as minimum standards
to guide the court's determination of eligibility of offenders under the Act.
In determining if incarceration is appropriate, a trial court may consider the
need to protect society by restraining a defendant having a long history of criminal
conduct, the need to avoid depreciating the seriousness of the offense, whether
confinement is particularly appropriate to effectively deter others likely to commit
similar offenses, and whether less restrictive measures have often or recently been
unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also
State v. Ashby, 823 S.W.2d at 169.
The trial court noted defendant’s extensive criminal history and his continued
failure to benefit from measures less restrictive than confinement. The record
certainly supports these findings. We conclude the trial court did not err in denying
alternative sentencing.
CONCLUSION
For the above reasons, we affirm the judgment of the trial court.
_______________________________
JOE G. RILEY, JUDGE
10
CONCUR:
______________________________
CURWOOD WITT, JUDGE
______________________________
LEE MOORE, SPECIAL JUDGE
11