State v. Jerry Blaylock ( 1997 )

IN THE CRIMINAL COURT OF APPEALS OF TENNESSEE
AT JACKSON
MARCH 1997 SESSION
FILED
August 21, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
)
Appellee, ) C.C.A. No. 02C01-9602-CC-00069
)
vs. ) Hardin County
)
JERRY BLAYLOCK, ) Hon. C. Creed McGinley, Judge
)
Appellant. ) (Possession of Controlled
) Substances)
)
)
FOR THE APPELLANT: FOR THE APPELLEE:
RICHARD W. DEBERRY (On Appeal) JOHN KNOX WALKUP
Assistant Public Defender Attorney General & Reporter
24th Judicial District
P.O. Box 663 ELLEN H. POLLACK
Camden, TN 38320 Assistant Attorney General
450 James Robertson Pkwy.
STEPHEN HALE (At Trial) Nashville, TN 37243-0493
Attorney At Law
P.O. Box 331 ROBERT RADFORD
Bolivar, TN 38008 District Attorney General
P.O. Box 686
Huntingdon, TN 38344-0686
JOHN OVERTON
Assistant Dist. Attorney General
Main Street
Savannah, TN 38372
OPINION FILED: _____________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The defendant, Jerry Blaylock, appeals the conviction and sentence
he received in the Circuit Court of Hardin County. The indictment alleges as count
(1) possession of cocaine with intent to manufacture, deliver, or sell, a Class B
felony, and as count (2) possession of marijuana, a misdemeanor. The jury
convicted the defendant on both counts and determined that fines in the amount of
$75,000 on count (1) and $1,250 on count (2) were appropriate. After a sentencing
hearing, the court imposed the fines and ordered a mid-Range I sentence on count
(1) of ten years and the maximum sentence on count (2), eleven months, twenty-
nine days, to run concurrently. The trial court declined to order any form of
alternative sentencing.
On this appeal, the defendant makes the following arguments:
(1) The evidence is insufficient to support the convictions,
especially the felony conviction of possession with intent to deliver
cocaine.
(2) The defendant’s constitutional rights were violated through
the state’s use of a peremptory challenge of a juror.
(3) A witness for the state improperly communicated prejudicial
hearsay evidence through his testimony.
(4) A law enforcement officer improperly destroyed evidence
that may have been exculpative.
(5) The court erred in its use of enhancing factors, its failure to
apply mitigating factors, and in its failure to allow alternative
sentencing.
After a thorough review of the record on appeal, including a transcript
of the evidence presented at the trial and at the sentencing hearing, we conclude
that the defendant’s appeal is meritless. The judgment of the trial court is affirmed
in all respects.
2
In view of the issues raised, a short statement of the facts of this case
is in order. The cocaine charge (count (1)) and the marijuana charge (count (2))
arose from separate incidents. The cocaine arrest occurred on February 6, 1994.
Acting on information supplied by various informants, officer Brian Huggins of the
24th Judicial District Drug Task Force, accompanied by a second officer, entered
a Savannah apartment during the early morning hours. The tenant-occupant of the
apartment, Patrice Irvin, consented to the entry and accompanied the officers
whose purpose, as announced to Ms. Irvin, was to locate the defendant and
investigate his alleged drug activity. Ms. Irvin showed the officers to a bedroom in
the apartment. The officers turned on the lights and found the defendant and a
female companion, Cassandra Porter, both unclothed and asleep in the bed. Upon
waking, the defendant reached for, and according to at least one of the officers,
grabbed a pair of black trousers that was lying near the defendant’s side of the bed.
The defendant then stated that the pants were not his and threw them aside. There
were no other garments present, and the defendant wrapped a towel around
himself. Officer Huggins picked up the black trousers, which were accessorized by
a belt that bore the name “Jerry,” and discovered a rock of crack cocaine. That item
became the basis for count (1) in the indictment. According to the toxicologist’s
testimony, the rock consisted of 6.2 grams of cocaine.
Count (2) arose out of an earlier stop of the defendant’s vehicle by
Officer Huggins on November 10, 1993. Reacting to an informant’s tip, the officer
stopped the vehicle driven by the defendant and asked for and received consent to
search the automobile. The officer found a small amount of marijuana in the trunk.
The two counts were tried together. In addition to the testimony of
Huggins and the officer who assisted in the arrest in the Irvin apartment, Irvin and
Porter testified. Irvin confirmed the officers’ account of the entry into the apartment
and the discovery of the contraband.
3
Officer Huggins testified that, based upon his experience as a drug
enforcement officer, the street value of the large rock found in the defendant’s
trousers pocket would be in the aggregate $1,500 to $2,500, based upon it being
divided into smaller rocks that could be sold as $25, $50, or $100 units. The
toxicologist testified that, based upon approximately 1,500 submissions of cocaine
which she had tested in the laboratory, the average quantity per submission was .10
gram. At 6.2 grams, the rock submitted to her in the defendant’s case was sixty-two
times larger than the average rock she typically tests.
Ms. Porter testified as a defense witness that on February 5, 1994, the
defendant pawned a television set, raised $250 to $300, and went to Jackson to buy
cocaine. She testified she had been a cocaine addict for eight years, the defendant
had been and was still her boyfriend, and they smoked crack together every day.
She stated that they intended to smoke the crack that the defendant purchased on
February 5, that they did smoke crack on that day, but that she had not seen the
rock that was found in the pants pocket. She testified that she uses twenty to thirty
twenty-dollar rocks per day. At one point she said that the defendant used a like
amount, but later in her testimony she denied saying that.
In addition, the defense called a drug rehabilitation counselor who
testified that during May and part of June, 1994, the defendant received drug
rehabilitation at True Recovery A&D Treatment Center, where the witness worked.
He stated the defendant had addictions to marijuana and crack cocaine. He further
stated that some crack addicts use five to ten rocks per day. In his opinion, a
person could not function after using that much crack.
The evidence reflects that there were no drug paraphernalia found on
or about the defendant’s person nor in the apartment where he was discovered.
4
Also, a search of his personal effects from the scene revealed no significant
amounts of cash.
The trial court conducted a sentencing hearing on September 16,
1994. The presentence report, contained in the technical record submitted by the
trial court clerk, reflects that the defendant had a previous conviction record
consisting of two misdemeanor convictions for possession of a weapon, a
misdemeanor conviction for flight to avoid arrest, a conviction for driving without a
valid driver’s license, and a conviction for violating the vehicle registration law. The
trial court approved the fines as fixed by the jury and imposed concurrent sentences
of ten years on count (1) (a Class B felony, Range I) and eleven months, twenty-
nine days on Count (2). The ten-year felony sentence is the midpoint of the
applicable range of eight to twelve years. The court below enhanced the sentence
above the minimum based upon findings that the defendant has a previous history
of criminal convictions or criminal behavior and that there were no mitigating factors.
The court declined to order any form of alternative sentencing.
I. Sufficiency of the Evidence.
When an appeal challenges the sufficiency of the evidence, the
standard of review is whether, after viewing the evidence 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. Jackson v. Virginia, 443 U.S. 307, 318 (1979);
State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On
appeal, the state is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v.
Cabbage, 571 S.W.2d 832, 835, (Tenn. 1978). This court will not re-weigh the
evidence, re-evaluate the evidence, or substitute its evidentiary inferences for those
reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).
Furthermore, in a criminal trial, great weight is given to the result reached by the
5
jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).
Once approved by the trial court, a jury verdict accredits the witnesses
presented by the state and resolves all conflicts in favor of the state. State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the proof are
matters entrusted exclusively to the jury as trier of fact. State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984). A jury’s guilty verdict removes the presumption of
innocence enjoyed by the defendant at trial and raises a presumption of guilt. State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the
burden of overcoming this presumption of guilt on appeal. State v. Black, 815
S.W.2d 166, 175 (Tenn. 1991).
A crime may be established by direct evidence, circumstantial
evidence, or a combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987). Before an accused may be convicted of a criminal offense based
upon circumstantial evidence, the facts and the circumstances “must be so strong
and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.” State v. Crawford, 225 Tenn. (3
Pack) 478, 482, 470 S.W.2d 610, 612 (1971). “A web of guilt must be woven
around the defendant from which he cannot escape and from which facts and
circumstances the jury could draw no other reasonable inference save the guilt of
the defendant beyond a reasonable doubt.” Id. at 484, 470 S.W.2d at 613.
The offense alleged as count (1) in the indictment is set forth in
Tennessee Code Annotated section 39-15-417 (a) (4) (Supp. 1996), whereby it “is
an offense for a defendant to knowingly . . . possess a controlled substance with
intent to manufacture, deliver or sell such controlled substance.” Cocaine is a
controlled substance. Tenn. Code Ann. § 39-17-408 (1991). Count (2) indicted the
defendant under section 39-17-418 (a), whereby it “is an offense for a person to
6
knowingly possess or casually exchange [marijuana].” Tenn. Code Ann. § 39-17-
418 (a), (b) (Supp. 1996).
The evidence is cogent and overwhelming that the defendant
possessed controlled substances as alleged in both counts of the indictment.
However, the defendant focuses his appellate argument not on proof of possession,
but on the sufficiency of proof of his intent to possess cocaine for delivery. Under
the Code, simple knowing possession is a Class A misdemeanor, while the crime
of which the defendant was convicted, possession with intent to deliver, is a Class
B felony. See Tenn. Code Ann. § 39-17-418(a), (c) (Supp. 1996); § 39-17-417(c)(1)
(Supp. 1996). Section 39-17-419 provides:
It may be inferred from the amount of a controlled substance
or substances possessed by an offender, along with other
relevant facts surrounding the arrest, that the controlled
substance or substances were possessed with the purpose of
selling or otherwise dispensing. It may be inferred from
circumstances indicating a casual exchange among individuals
of a small amount of a controlled substance or substances that
the controlled substance or substances so exchanged were
possessed not with the purpose of selling or otherwise
dispensing in violation of the provisions of § 39-17-417 (a).
Such inferences shall be transmitted to the jury by the trial
judge’s charge, and the jury will consider such inferences
along with the nature of the substance possessed when
affixing the penalty.
Tenn. Code Ann. § 39-17-419 (1991). The trial court charged the jury with the
inference contained in the first sentence of section 39-17-419. The second
inference, arising when a small amount of controlled substances is casually
exchanged, was not charged. Presumably, this portion of the statute was omitted
because there was no proof of any exchange, casual or otherwise.
Applying the appropriate standard of review and assessing the
evidence in the light most favorable to the state, we find sufficient evidence
justifying any rational trier of fact to conclude beyond a reasonable doubt that the
defendant possessed cocaine with intent to deliver the substance. Based upon the
amount of cocaine seized--a large amount, according to two experienced witnesses-
-the state was entitled to the inference set forth in the first sentence of Tennessee
7
Code Annotated section 39-17-419. While the proof suggests that the defendant
had a crack cocaine habit, the proof is lacking as to how prodigious his habit was.
The only proof submitted came through the testimony of Ms. Porter. Not only were
her statements conflicting, but her testimony was vulnerable to the jury making
critical credibility judgments. The defendant did not testify. Being constrained to not
reweigh the evidence and not substitute our evidentiary inferences for those made
by the jury, we conclude that the defendant has not carried his burden of
overcoming on appeal the presumption of guilt that arose upon his conviction in this
case.
II. Constitutional Infringement: Peremptory Juror Challenge
Exercised by the State.
During the voir dire of the venire members, one juror, Ms. Stackings,
a black female, responded to questions about being acquainted with prospective
witnesses by stating that she had played softball in the past with one of the
prospective witnesses and that the two were “still friends.” When asked if the
relationship would cause her to give an inordinate amount of weight to the witness’s
testimony, Ms. Stackings replied twice, “I don’t know, it might.” The court then
examined Ms. Stackings and determined that she could adequately disregard the
personal relationship in considering the facts presented in evidence and declined
to excuse her for cause. After the venire was examined, the state peremptorily
challenged Ms. Stackings. The trial court called counsel to the bench for a
conference out of the hearing of the prospective jurors. The judge noted the fact
that Ms. Stackings is black and that the defendant is black and inquired if the district
attorney had a race-neutral reason for challenging this juror. The district attorney
said, “She is a friend of a person who may testify.” The district attorney further
stated that while the witness might not be used, she was under subpoena. The
defense objected to the use of this challenge, but the trial court overruled the
objection and ordered the jury selection to be resumed.
8
In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986), the United States Supreme Court held that the state’s use of peremptory
challenges in the jury selection process to intentionally exclude jurors of the
defendant’s race violates his right to equal protection under the Fourteenth
Amendment to the U.S. Constitution. A prima facie case of purposeful discrimination
could be established by the defendant showing that the defendant was a member
of a “cognizable racial group,” that the state exercised its challenges to exclude
members of the defendant’s race, and that all of the relevant circumstances raised
an inference that the state used the peremptory challenge to exclude potential
jurors because of their race. 476 U.S. at 96, 106 S.Ct. at 1723. If the defendant is
able to establish a prima facie case of intentional discrimination against prospective
jurors from his own race, the state must then show there was a race-neutral reason
for the challenge(s). 476 U.S. at 97, 106 S.Ct. at 1723. The explanation does not
have to rise to the level justifying a challenge for cause. In determining the issue,
the trial court examines the “totality of the relevant facts.” State v. Bell, 759 S.W.2d
651, 653 (Tenn. 1988). Such facts may include the number of members of the
defendant’s race that were excluded through the state’s challenge, but see State
v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (cautioning that numbers alone
are not conclusive), whether the state failed to exhaust its peremptory challenges
while leaving members of the defendant’s race on the jury panel, State v. Butler,
795 S.W.2d 680, 687 (Tenn. Crim. App. 1990), or whether the challenged venire
members exhibited or acknowledged some race-neutral attitude or relationship so
that the state was justified in fearing his or her antipathy to the prosecution. Id.;
State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); Brown, 915 S.W.2d at 9.
However, we point out that the exercise of “even one peremptory challenge in a
purposefully discriminatory manner would violate equal protection.” State v. Ellison,
841 S.W.2d 824, 827 (Tenn. 1992). In passing, we note that in 1991 the United
States Supreme Court modified Batson by deleting the requirement that the
defendant and the wrongfully excluded jurors must be of the same race. Powers
v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). In Georgia v.
9
McCollum, 505 U.S. 42, 112 S. Ct. 2348. 120 L. Ed. 2d 33 (1992), the Supreme Court
further amplified Batson by requiring that the defendant’s peremptory challenges be
subject to equal protection scrutiny.
On appellate review of the trial court’s findings regarding the Batson
issue, we “cannot substitute our judgment for that of the trial court or declare error
absent a finding that the trial judge abused his or her discretion.” State v. Matthew
L. Moates, No. 03C01-9610-CR-00383, slip op. at 5 (Tenn. Crim. App., Knoxville,
June 24, 1997).
Guided by the foregoing principles, we find no abuse of discretion in
the trial court’s ruling that no purposeful discrimination occurred. Indeed, the record
fully supports a finding that, not only was the state’s single challenge of a black juror
based on a race-neutral factor, but the defendant failed to establish even a prima
facie case of purposeful discrimination.
III. Hearsay.
During the state’s direct examination of Officer Huggins, the witness
began to describe the information given to him by an informant about the
defendant’s alleged drug sales. Defense counsel interposed a hearsay objection
which was sustained, and the trial court announced that the witness may not “state
what someone else told him.” Later in his testimony, Officer Huggins was asked
how he came into contact with Patrice Irvin. He responded, “She was seen in the
vehicle that the informants had told me that Mr. Blaylock would be in, that he was
selling crack out of.” A further objection was made and was sustained, but the trial
court gave no admonitory or limiting instructions to the jury.
The state argues that the reference to the defendant selling drugs was
not hearsay because it was not offered to prove the truth of the matter asserted by
10
the absent declarant, citing State v. Caughron, 855 S.W.2d 526 (Tenn. 1993). See
Tenn. R. Evid. 801(c), 802. The difficulty with the state’s argument is that there was
no other reason for offering the statement other than to suggest that the defendant
had been selling crack from a vehicle. See Neil P. Cohen, et al, Tennessee Law of
Evidence § 801.3 (3d ed. 1995). If even relevant to the question being answered,
the comment was gratuitous, and we must bear in mind that the person testifying
was the prosecuting officer. There was no other relevant reason for the offered
information except to show that the defendant sold crack from this vehicle, and for
a such a purpose, the evidence depended upon the credibility and/or accuracy of
the absent declarant.
Accordingly, we conclude that the comment was objectionable
hearsay, but we further hold that the injection of this comment was harmless error.
The defense elicited information from this witness that, on different occasions when
the defendant came to Savannah, the officer had received fifty to sixty calls from
persons who claimed that the defendant was dealing in drugs. Even though the
witness acknowledged that he had never effected a “buy” from the defendant and
had obtained no other proof of the defendant selling drugs, the infusion of the
volume of informants’ tips tends to overwhelm and minimalize the hearsay
statement, relegating the admission of the statement to harmless error. Tenn. R.
App. P. 36(b); Tenn. R. Crim. P. 52(a). See e.g., Caughron, 855 S.W.2d 526.
State v. Summerall, 926 S.W.2d 272, 278 (Tenn. Crim. App. 1995); Marsh v. State,
561 S.W.2d 767 (Tenn. Crim. App. 1977); Snowball v. State, 477 S.W.2d 240(Tenn. Crim. App. 1971). Furthermore, we observe that, in the same cross-
examination that elicited the fact of a large number of informant tips, defense
counsel was effective in extracting the witness’s admission that no proof of any
actual sale of drugs had been obtained, despite all of the informant activity and the
intense investigation of the defendant that had been ongoing for some eight
months. The record reflects a palpable suggestion that the informants’
communications were contrived, or at least unreliable, thereby diminishing the
11
impact of the insertion of inadmissible hearsay evidence. Accordingly, the issue is
meritless.
IV. Destruction of Exculpatory Evidence.
The defendant asserts that he was prejudiced by the destruction of audio
tapes which may have preserved the defendant’s statements that he did not sell
drugs, allegedly made in response to an undercover solicitation to buy drugs from
him. Officer Huggins admitted that attempts had been made to equip
informants/undercover-operatives with tape recorders in order to record a sale of
drugs by the defendant to an informant/operative. However, the record does not
reflect that any recording of the defendant was ever made.1 Thus, we resolve the
issue by concluding there was no factual basis in the record for finding that the state
failed to disclose or destroyed exculpative evidence.
V. Sentencing.
The defendant complains that the trial court improperly determined the
length of this sentence and failed to grant alternative sentencing.
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 of the record
with a presumption that the determinations made by the trial court are correct.
Tenn. Code Ann. §40-35-401(d) (1990). This presumption is “conditioned upon the
1
Officer Huggins acknowledged at one point in cross examination that,
during the operation, conversations were recorded, but he then testified, “There
were no transactions on those tapes.” When asked if the tapes contained
statements wherein the defendant said, “I don’t sell drugs,” the officer stated, “No
sir,” and then the officer testified there were no conversations with the defendant
on any of the tapes. The officer indicated that any tapes that had been used to
try to ensnare the defendant in a drug sale had “probably” been destroyed. The
matter was not further pursued, and no proof concerning the existence and/or
destruction of the tapes was tendered by either party throughout the trial or at the
hearing on the motion for new trial.
12
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). “The burden of showing that the sentence is improper is
upon the appellant.” Id. at 169. In the event the record fails to demonstrate the
required consideration by the trial court, review of the sentence is purely de novo.
Id. If appellate review reflects the trial court properly considered all relevant factors
and its findings of fact are adequately supported by the record, this court must
affirm the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
In the absence of enhancement and mitigating factors, the
presumptive length of sentence of a Class B, C, D, or E felony is the minimum
sentence in the statutory range while the presumptive length of sentence for a Class
A felony is the midpoint in the statutory range. Tenn. Code Ann. §40-35-210(c)
(Supp. 1996). Where one or more enhancement factors and no mitigating factors
exist, the trial court may sentence above the presumptive sentence but still within
the range. Id. §40-35-210(d). Where both enhancement and mitigating factors
apply, the trial court must start at the minimum sentence, enhance the sentence
within the range as appropriate for the enhancement factors, and then reduce the
sentence within the range as appropriate for the mitigating factors. Id. §40-35-
210(e). The weight afforded an enhancement or mitigating factor is left to the
discretion of the trial court so long as the trial court complies with the purposes and
principles of the Tennessee Criminal Sentencing Reform Act of 1989 and its
findings are supported by the record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn.
Crim. App.), perm. app. denied (Tenn. 1995).
In making its sentencing determination, the trial court, at the
“conclusion of the sentencing hearing,” determines the range of sentence and then
determines the specific sentence and the propriety of sentencing alternatives by
considering (1) the evidence, if any, received at the trial and the sentencing hearing;
13
(2) the presentence report; (3) the principles of sentencing and arguments as to
sentencing alternative; (4) the nature and characteristics of the criminal conduct
involved; (5) evidence and information offered by the parties on the enhancement
and mitigating factors; (6) any statements the defendant wishes to make in the
defendant’s behalf about sentencing; and (7) the potential for rehabilitation or
treatment. Tenn. Code Ann. §40-35-210(a), (b) (Supp. 1996); Tenn. Code Ann.
§40-35-103(5) (1990); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App.
1993).
In the case now before us, the trial judge placed of record extensive
findings of fact and demonstrated that he understood, reviewed, and considered the
applicable sentencing principles. The sentencing determinations, therefore, are
accompanied by the presumption of correctness.
Applying the principles of sentencing with the presumption of
correctness, the length of each sentence is fully supported in the record. The trial
court’s reliance upon the previous history of criminal convictions or criminal behavior
is warranted.2 See Tenn. Code Ann. § 40-35-114(1) (Supp. 1996). The trial court
2
As pointed out above, the pre-sentence report, which contains
information about the defendant’s previous criminal convictions, is found in the
technical record as prepared and certified by the trial court clerk. The copy
included in the record bears a facsimile of the clerk’s filing stamp (indicating that
the original was filed with the clerk on September 9, 1994), but the document
bears no notation that it was received by the court as an exhibit to the sentencing
hearing. In the transcript of the sentencing hearing, the trial court referred to the
pre-sentence report and stated, “It will be considered then as amended and
corrected.” However, it was not exhibited to the sentencing hearing. There was
no objection to the procedure nor to the ultimate use of the report. Within the
context of the proceeding in this case, the trial court received the report, if not by
stipulation, then by tacit acceptance by both sides, without objection.
Furthermore, we note that, whether the report’s admissibility is stipulated or not,
the court’s consideration of the report -- and hence the court’s receipt of the
report -- is mandated by Tennessee Code Annotated section 40-35-210(b) (2)
(1990). Thus, the defendant does not and could not complain of the use of the
report.
The issue that trial courts should take care to address, however, is the
organization of the sentencing record for appellate review. An appellate court
must be able to identify in the record the same document upon which the trial
court relied. Even though a report in this case may have been a de facto exhibit,
amounting to evidence submitted on behalf of the state, no report was
specifically identified and authenticated in the record by the trial court. For
situations of this type, the following well-reasoned rule was developed:
14
was justifiably concerned about the dangerous combination of drug trafficking and
going armed. Clearly, the trial judge determined that the record of prior convictions
for weapons offenses exacerbated the drug offense in the case under review,
causing the trial court to give controlling weight to this enhancement factor. See
Hayes, 899 S.W.2d at 185. We concur.
The defendant argues on appeal that the trial court should have
considered and applied the statutory mitigating factor that the criminal conduct
neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-
113(1) (1990). However, had there been any error committed in failing to use this
mitigating factor, it would be harmless based upon the weight justifiably accorded
to the applicable enhancement factor. 3 Tenn. R. App. P. 36(b); Tenn. R. Crim. P.
Before an exhibit may be considered by this court, it must have been (a)
received into evidence, (b) marked by the trial judge, clerk or court
reporter as having been received into evidence as an exhibit, (c)
authenticated by the trial judge, and (d) included in the transcript of the
evidence transmitted to this court.
State v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987) (emphasis
added). See Tenn. R. App. P. 13(c). See also State v. Richard Douglas Lowery,
No. 03C01-9604-CC-00146, slip op. at 9-10 (Tenn. Crim. App., Knoxville, May
19, 1997) (rule applied to a “criminal history report” in the context of sentencing
hearing). Under this rule a pre-sentence report filed only with the clerk and
found only in the technical record is not in evidence. As pointed out above, the
report in the case now before us may have been substantially “received into
evidence as an exhibit,” but “authenticated by the trial judge” as a matter of
record it was not. (The technical record, where the ostensible report appears in
this case, is certified by the court clerk, not authenticated by the trial judge.
Compare Tenn. R. App. P. 24(a) (1) with Tenn. R. App. P. 24(f)). Sentencing
courts should take care to assure that the pre-sentence report is authenticated
by the judge as evidence received in the sentencing hearing.
While this issue is worthy of amplification for the sake of sentencing by
courts in the future, we are not concerned about the effect of the lack of
authentication or identification of the exhibit in this case. First, the issue was not
raised in the trial court nor on appeal, and accordingly, it is waived. Tenn. R.
App. P. 13(b), 24(b), 36(a); Tenn. R. Ct. Crim. App. 10(b). Secondly, the prior
convictions that were utilized by the trial court in sentencing the defendant, being
two convictions involving the carrying of weapons, and a conviction for evading
arrest were acknowledged by the defendant when he testified at the sentencing
hearing. Under these facts any error in not authenticating the report as evidence
is harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. App. 52(a).
3
We note, for example, that in State v Dondi B. Dolan, No. 03C01-9101-
CR-283 (Tenn. Crim. App., Knoxville, March 25, 1992), this court was willing to
accept the trial court’s application of mitigating factor (1) where the defendant
sold 1.5 grams of cocaine. However, in Dolan we affirmed the trial court’s
determination that the enhancement factors outweighed this mitigating factor,
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52(a).
Finally, we examine the refusal of the trial court to allow alternative
sentencing in this case.4 Under the Tennessee Sentencing Reform Act of 1989, a
defendant who is “an especially mitigated or standard offender convicted of a Class
C, D, or E felony,” and who has not been convicted of “committing the most severe
offenses, possessing [a] criminal histor[y] evincing a clear disregard for the laws and
morals of society, and evincing failure of past efforts of rehabilitation,” is presumed
to be a favorable candidate for alternative sentencing options, “in the absence of
evidence to the contrary.” Tenn. Code Ann. § 40-35-102(5), (6) (Supp. 1996). A
defendant is eligible for probation, a particular alternative sentencing option, when
the sentence “actually imposed . . . is eight (8) years or less . . . .” Tenn. Code Ann.
§ 40-35-303(a) (Supp. 1996) (unless the defendant is convicted of aggravated
forms of kidnapping, robbery, child abuse, or sexual battery or certain drug offenses
not applicable in the case sub judice).
The defendant was convicted of a Class B felony and received a
sentence of ten years. He is neither eligible for probation nor is he presumed to be
a favorable candidate for alternative sentencing. The record reflects the trial court
was guided by the principles of sentencing and considered alternative sentencing,
and likewise in the case now before us, the enhancement factor so clearly
outweighs any possible benefit to the defendant of applying mitigating factor (1),
that we do not feel constrained to determine the applicability of this mitigating
factor to the defendant’s possession of 6.2 grams of cocaine. This conclusion is
further facilitated by the fact that neither party developed the mitigation issue in
the briefs filed on appeal.
4
Tennessee Code Annotated section 40-35-302(d) provides that, in
imposing a misdemeanor sentence, “the court shall fix a percentage of the
sentence which the defendant shall serve.” Tenn. Code Ann. § 40-35-302(d)
(Supp. 1996) (emphasis added). (After serving the required percentage, the
prisoner is eligible for work release, furlough, or other rehabilitative programs.)
The maximum percentage that may be established is 75% (except in certain
cases not applicable here). “If no percentage is expressed in the judgment, the
percentage shall be considered zero percent (0%).” In the case now before us,
the sentencing order specifies no percentage. With respect to the misdemeanor
sentence, the “administrative authority” has the discretionary authority to “place
the defendant in [rehabilitative] programs as provided by law.” Id. However, the
imposition of concurrent sentences renders the zero percentage service of the
misdemeanor sentence meaningless.
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and that is all that we can require. There is no basis in the record for upending the
trial court’s judgment that alternative sentencing options were not appropriate. In
other words, the defendant has failed to carry his burden of demonstrating that the
manner of service of the sentence is improper. There is no ground for altering or
setting aside the sentence as ordered below.
VI. Conclusion.
The conclusion is that there is no consequential error in the
proceedings below, and the judgment of the trial court is in all respects affirmed.
_______________________
CURWOOD WITT, Judge
CONCUR:
__________________________
JOE B. JONES, Presiding Judge
__________________________
GARY R. WADE, Judge
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