State of Tennessee v. Melvin Lewis Peacock ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
July 9, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
)
Appellee, ) No. 01C01-9704-CR-00118
)
) Davidson County
v. )
) Honorable J. Randall Wyatt, Jr., Judge
)
MELVIN LEWIS PEACOCK, ) (Possession of three hundred grams or
) more of cocaine for resale and unlawful
Appellant. ) possession of a weapon)
For the Appellant: For the Appellee:
Mark J. Fishburn John Knox Walkup
100 Thompson Lane Attorney General of Tennessee
Nashville, TN 37211 and
Lisa A. Naylor
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
Katrin Novak Miller
Assistant District Attorney General
Washington Square
222 2nd Avenue, North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Melvin Lewis Peacock, appeals as of right from his jury
convictions in Davidson County for possession with intent to sell three hundred grams
or more of a substance containing cocaine, a Class A felony, and for the unlawful
possession of a weapon, a Class E felony. The trial court sentenced the defendant as
a Range I, standard offender to twenty years in the custody of the Department of
Correction for the cocaine possession conviction and to a concurrent two-year sentence
in the custody of the Department of Correction for the weapon possession conviction.
The trial court ordered the defendant to serve the twenty-year sentence consecutively
to an earlier sentence. The defendant presents the following issues for our review:
(1) the trial court erred when it denied the defendant’s motion
to suppress the evidence seized by the police pursuant to a
search warrant on the basis that an exact copy of the warrant
was not left with the defendant;
(2) the trial court erred in denying the defendant’s motion in
limine to preclude the state from introducing into evidence five
car titles found in a safe; and
(3) the trial court erred in permitting the state to recall Curtis
Peacock as a witness during its case-in-chief.
We affirm the trial court’s judgment of conviction.
This case involves a search of the defendant’s apartment pursuant to a
search warrant on December 9, 1994. Upon entering the apartment, Officer Donegan
found three people: (1) the defendant, (2) Curtis Peacock, the defendant’s cousin and
roommate, and (3) George Logan, the defendant’s friend and a recent resident of the
apartment. During the search, officers discovered about seven hundred grams of
cocaine located in a safe. The officers also found a weapon and undisclosed amounts
of marijuana. Later, on January 25, 1996, five car titles in the defendant’s name were
discovered in the safe while Officer Donegan was gathering information regarding the
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safe’s manufacturer and serial numbers pursuant to a request by the defendant’s
attorney.
I. MOTION TO SUPPRESS
The defendant contends that the trial court erred by refusing to suppress
the evidence seized from his apartment. The defendant submits that the failure of the
police to leave a copy of the search warrant with him makes the search illegal and the
evidence inadmissible under Rule 41(c), Tenn. R. Crim. P. The state counters that the
officer did in fact give to the defendant a copy of the warrant as required by Rule 41(c).
We agree.
At the suppression hearing, the defendant testified that neither he nor
anyone else living at the defendant’s residence was given a copy of the search warrant
executed by Officer Donegan. He said that he did not see a copy of the search warrant
or the inventory list until copies were forwarded to him by his attorney. The defendant
stated that he requested a copy from Officer Donegan and that the officer replied that
he would get him one. He said that at no point did Officer Donegan read the search
warrant to him, show it to him, or tell him that a copy would be left at the residence.
The defendant testified that he had been incarcerated since his arrest.
Officer John Donegan testified that he obtained a search warrant to
search the defendant’s residence. He said that upon entering the residence, he found
the defendant, Curtis Peacock, and George Logan. Officer Donegan said that once the
apartment was secured, the three suspects were gathered together and read their
rights. He said that the search of the defendant’s premises revealed about seven
hundred grams of cocaine, unspecified quantities of marijuana, and a weapon.
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Officer Donegan testified that he obtained two copies of the search
warrant and that he gave the defendant one of the copies to read as the search was
being executed. Officer Donegan stated that he also compiled an inventory list of the
items seized during the search. He said that after the search he left an inventory list
with the defendant’s copy of the search warrant on the kitchen table at the residence.
Officer Donegan testified that he told the defendant that a list of the items seized would
be left with the defendant’s copy of the search warrant at the residence for safekeeping
purposes. He said that he left the copies at the residence because he knew that the
defendant was going to jail and would have difficulty keeping up with the inventory list.
The trial court denied the defendant’s motion to suppress. It found that
Officer Donegan properly provided a copy of the warrant to the defendant and that he
left a copy of the warrant and inventory list on the table at the residence.
A trial court’s findings of fact on a motion to suppress are conclusive on
appeal unless the evidence in the record preponderates against them. State v. Odom,
928 S.W.2d 18, 23 (Tenn. 1996). The application of the law to the facts as determined
by the trial court is a question of law that is reviewed de novo on appeal. State v.
Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
Rule 41(c) of the Tennessee Rules of Criminal Procedure provides in
pertinent part as follows:
The magistrate shall prepare an original and two exact copies
of the search warrant, . . . one of which shall be left with
person or persons on whom the search warrant is served . . .
. [T]he failure of the serving officer where possible to leave a
copy with the person or persons on whom the search warrant
is being served, shall make any search conducted under said
search warrant an illegal search and any seizure thereunder an
illegal seizure.
The intent of Rule 41(c) is to “secure the citizen against carelessness and abuse in the
issuance and execution of search warrants.” State v. Steele, 894 S.W.2d 318, 319
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(Tenn. Crim. App. 1994). Rule 41(d) states that the “officer taking property under the
warrant shall give to the person from whom or from whose premises the property was
taken a copy of the warrant and a receipt for the property taken or shall leave the copy
and receipt at a place from which the property was taken.” The provisions of Rule 41
are mandatory. Steele, 894 S.W.2d at 319.
The suppression issue turns on whether Officer Donegan did in fact leave
a copy of the search warrant with the defendant in accordance with 41(c) and (d). Upon
review, we conclude that the evidence does not preponderate against the court’s finding
that Officer Donegan gave the defendant a copy of the warrant. Therefore, we hold that
the trial court properly denied the motion to suppress.
II. MOTION IN LIMINE
The defendant contends that the trial court erred when it denied the
defendant’s motion to prohibit the state from introducing into evidence at trial five car
titles that were discovered on January 25, 1996, in a safe seized from the defendant’s
apartment during the search on December 9, 1994. The defendant argues that a
prerequisite to introducing tangible evidence is that the “witness must be able to identify
the evidence or establish an unbroken chain of custody.” State v. Goodman, 643
S.W.2d 375, 381 (Tenn. Crim. App. 1982). Although the defendant admits that
identifying the titles as belonging to him is self-evident, he insists that the state failed to
establish the requisite chain of custody. Specifically, the defendant contends that the
state failed to demonstrate that there had not been any tampering, substitution, or
mistake during that period of time which elapsed between the initial search and the
discovery of the titles at issue. In addition, the defendant submits that this evidence
should have been excluded under Rules 403 and 602 of the Tennessee Rules of
Evidence. He argues that under Rule 403 the probative value is outweighed by the
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danger that the evidence will mislead the jury and that under Rule 602 the officer had
no personal knowledge of how the titles arrived in the safe.
The state responds that the safe, and the car titles which it contained,
were secured in police custody after the search and that they were not tampered with in
any way. The state argues that the titles are highly relevant to the instant case and that
Officer Donegan had sufficient personal knowledge to testify regarding the contents of
the safe, in accordance with Rule 602. The state maintains that the trial court did not
err in denying the defendant’s motion in limine to prohibit the state from introducing the
car titles into evidence. We agree.
The defendant filed a motion in limine to exclude the car titles found in the
safe on the ground that the state could not satisfactorily establish the chain of custody
of the titles or their location at the time of seizure. The trial court denied the motion,
stating that the evidence was admissible and that the circumstances in which the
evidence was found went to the weight of the evidence rather than its admissibility.
Although the circumstances in the instant case were unusual in that evidence is usually
discovered before it is seized and not the reverse, the officer’s explanation for the delay
in discovering the titles was found to be reasonable by the trial court.
Officer Donegan stated that during the search of the defendant’s
residence in December 1994, the officers found a safe, approximately eighteen inches
square and weighing thirty to forty pounds, located under the kitchen sink. Officer
Donegan testified that to open the safe, it was necessary for him to hit the safe once or
twice with a sledge hammer. He said that the front door popped open, and he found
about seven hundred grams of cocaine in plastic bags inside the safe. He said that he
examined the inside of the safe and did not notice anything else at that time. He said
that the blow from the sledgehammer pushed a shelf inside the safe against the roof of
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the interior. Officer Donegan testified that the safe remained locked at the warehouse
until January 25, 1996, when Officer Donegan gathered information regarding the
safe’s serial number and manufacturer for the defendant’s attorney. He stated that as
he lowered the safe to the ground, he dropped the safe on a chair. He stated that he
immediately noticed a strong odor of cocaine. Officer Donegan said that he opened the
door of the safe and a large plastic baggie containing cocaine and loose cocaine fell
out. The car titles, listing the defendant and Curtis Peacock as owners, were among
the cocaine. He said that it appeared that the cocaine and the titles had been lodged
up against the roof of the safe and were knocked loose after he dropped the safe onto
the chair. Officer Donegan demonstrated for the court how the safe was opened and
the location of the shelf, drugs and car titles. At trial, the titles were admitted into
evidence for the purpose of establishing the defendant’s ownership of the safe. The
state did not introduce the additional cocaine into evidence.
In determining the admissibility of tangible evidence, it is sufficient if the
evidence establishes a reasonable assurance of the identity of the evidence. State v.
Woods, 806 S.W.2d 205, 212 (Tenn. Crim. App. 1990). Absent a clear mistake or
abuse of discretion, the decision of the trial court concerning the sufficiency of evidence
as to the chain of custody will not be disturbed. Wade v. State, 529 S.W.2d 739, 742
(Tenn Crim. App. 1975); State v. Goodman, 643 S.W.2d 375, 381 (Tenn. Crim. App.
1982).
In our view, the trial court properly determined that the state established a
chain of custody for the car titles. Officer Donegan testified that after he seized the
safe on December 9, 1994, he properly tagged it before sending it to the Vice
Warehouse for storage. He stated that the safe remained locked up at the warehouse
until he retrieved it on January 25, 1996. The trial court heard Officer Donegan’s
testimony and thoroughly investigated the unusual circumstances surrounding the
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discovery of the car titles. At the conclusion of the trial court’s hearing, the court was
satisfied that the officer’s explanation was credible and that the discovery of the titles
was reasonable under the circumstances of this case. W e hold that the evidence
supports the trial court’s determination that the police did not tamper with, substitute, or
make a mistake with the evidence while it was in police custody.
As for the defendant’s contentions with respect to Rules 403 and 602,
Tenn. R. Evid., we note that the defendant asserted in his motion in limine that the titles
were excludable under these rules. However, at the hearing, the defendant did not
argue that the evidence should be excluded on the basis of Rules 403 and 602. Nor
did the trial court make a ruling regarding the admissibility of the evidence under these
rules. As stated by this court in State v. Kinner, 701 S.W.2d 224, 227 (Tenn. Crim.
App. 1985), “[t]he filing of a motion with the clerk without presenting it to the trial court
for determination is of no effect.” Moreover, “[a] trial judge will not be placed in error for
failing to consider something which was never presented to him.” Id.In any event, we believe that Officer Donegan’s testimony demonstrated
sufficient knowledge of the matters regarding the initial search and seizure, as well as
the facts surrounding the subsequent discovery of the hidden car titles, to comply with
the “personal knowledge” requirement in Rule 602. Furthermore, Rule 403 was not
violated. The probative value of the titles on the issue of ownership of the cocaine is
not substantially outweighed by the danger that the jury would have been unfairly
misled. The trial court did not abuse its discretion in admitting the evidence.
III. RECALL OF A WITNESS
Finally, the defendant contends that the trial court erred in permitting the
state to recall Curtis Peacock as a witness during its case-in-chief. He submits that
Peacock’s testimony was so inconsistent and contradictory that it should have been
8
excluded in its entirety. Relying on Taylor v. Nashville Banner Publishing Company,
573 S.W.2d 476, 482-83 (Tenn. App. 1978), the defendant argues that it is the rule of
law in this state that contradictory statements of a witness relating to the same fact
have the effect of “canceling each other out.” The state responds that this rule only
applies when the inconsistent testimony is unexplained and when neither version of the
witness’ testimony is corroborated by other evidence. Id. at 483. The state agrees that
the testimony of Curtis Peacock was inconsistent, and the state admits that it was not
corroborated by other testimony or facts. However, the state maintains that Peacock
explained the inconsistent testimony by testifying that he was nervous and had difficulty
hearing the questions, and thus, the rule from Taylor is inapplicable here. We agree.
Curtis Peacock’s testimony was inconsistent the first time he testified.
Initially, Peacock testified during direct examination by the state that he saw the safe
possibly a week or two before the search. Then the witness stated that he first noticed
the safe four to five days before the search and that he was not sure whether the safe
was there before the arrival of Logan. He said that Logan began to live with the
defendant two to three weeks before the search. Under cross-examination, the witness
stated that he guessed that he did not see the safe until after Logan arrived. Upon
redirect examination, Peacock testified that he saw the safe before Logan arrived. He
then stated that he was not sure when he first noticed the safe. Peacock changed his
testimony two more times. On redirect examination, he said he remembered telling the
state’s attorney that he saw the safe before Logan arrived but that he was no longer
sure and was confused. On recross examination, he testified that Logan was there
before he saw the safe, and on the subsequent redirect examination, he again said that
he saw the safe before Logan arrived.
Peacock was recalled by the state the next day to clarify his testimony.
He testified that he saw the safe before Logan arrived and said that he contradicted his
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own testimony because he was nervous and confused the day before. He did not
change his testimony during the remainder of the examination. On cross-examination,
he stated that he saw the safe before Logan arrived and that he was telling the truth.
The decision to recall an excused witness is vested within the discretion of
the trial court. State v. McAlister, 751 S.W.2d 436, 438 (Tenn. Crim. App. 1987). The
trial court’s decision to allow a party to recall a witness will only be disturbed upon a
showing of abuse of discretion. State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993).
We agree that the testimony first given by Curtis Peacock was confusing
and inconsistent. However, the defendant’s claim that Curtis Peacock’s contradictory
testimony was not explained on recall does not negate the fact that the trial court had
the discretion to allow the testimony. We see no abuse of discretion upon the record
before us.
In consideration of the foregoing and the record as a whole, the
judgments of conviction are affirmed.
_______________________________
Joseph M. Tipton, Judge
CONCUR:
David H. Welles, Judge
Joe G. Riley, Judge
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