State of Tennessee v. Treadence Lee Howard ( 2021 )

12/15/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 14, 2021
STATE OF TENNESSEE v. TREADENCE LEE HOWARD
Appeal from the Circuit Court for Giles County
Nos. 14412, 14504 Stella L. Hargrove, Judge
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No. M2020-01053-CCA-R3-CD
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Defendant, Treadence Lee Howard, pled guilty to possession of 0.5 grams or more of
cocaine with the intent to sell and was sentenced to nine years, suspended to supervised
probation after service of one year in confinement. Following a hearing on a probation
violation warrant based on Defendant’s arrest for attempted first-degree murder, reckless
endangerment, and being a felon in possession of a firearm, the trial court revoked
Defendant’s probation and ordered him to serve the remainder of the nine-year sentence in
confinement. On appeal, Defendant argues that the trial court abused its discretion in fully
revoking his probation. In a separate case, Defendant was found guilty following a jury
trial of facilitation of the sale of cocaine in an amount of 0.5 grams or more within 1,000
feet of a park and was sentenced as a Range II offender to eight years and six months in
the Tennessee Department of Correction, to be served consecutively. Defendant argues
that the trial court erred in admitting the guilty plea of a co-defendant at trial and that the
evidence was insufficient to support his conviction. Following our review of the entire
record and the briefs of the parties, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JILL BARTEE AYERS J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and NORMA MCGEE OGLE, J., joined.
Brandon E. White (on appeal), Columbia, Tennessee, Hershell D. Koger (at trial), Pulaski,
Tennessee, and Marilyn J. Holt (at trial), Pulaski, Tennessee, for the appellant, Treadence
Lee Howard.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant
Attorney General; Brent Cooper, District Attorney General; and Rebecca Sue Parsons,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Case Number 14412
In Giles County Circuit Court Case Number 14412, Defendant was charged with
possession of 0.5 grams or more of cocaine with intent to sell, a Class B felony. On April
9, 2019, Defendant pled guilty as charged in exchange for a nine-year sentence as a Range
I offender, suspended to supervised probation after service of one year in confinement, a
$2,000.00 fine, and court costs. On June 9, 2020, Defendant’s probation officer, Cile
Counce (“Officer Counce”), filed a probation violation report against Defendant, alleging
that Defendant violated the terms of his probation by virtue of his arrest for attempted first-
degree murder, reckless endangerment, and being a felon in possession of a firearm, and a
warrant was issued.
At the probation revocation hearing, Investigator Gerrod Shirey (“Investigator
Shirey”) of the Pulaski Police Department testified that on May 9, 2020, he investigated a
shooting incident in Pulaski, Tennessee. As part of his investigation, Investigator Shirey
located nineteen spent shell casings approximately fifty yards from a residence at the
intersection of Childers Street and East Grigsby Street. He testified that one of the casings
was a 7.62 shell casing consistent with an AK-47 style assault rifle, and the rest were .223
shell casings consistent with an AR-15 style assault rifle. Investigator Shirey also testified
that there were numerous bullet holes within the residence where the shooting incident
occurred.
During his investigation into the shooting, Investigator Shirey determined that “a
silver or gray car” was involved, and he located a vehicle matching that description at 408
Pine Street in Pulaski, Tennessee. Kirsten Risner and Delissa Spivy owned the Pine Street
residence and maintained a surveillance system for their property. Investigator Shirey
obtained a copy of the surveillance footage which showed a silver car pulling into the
driveway earlier that day on May 9, 2020. When the vehicle came to a stop, a man later
identified as Key McDonald exited the driver’s seat of the vehicle. Defendant exited the
front passenger seat of the vehicle. Both men walked to the rear of the vehicle and bent
over to look at the bumper of the vehicle which contained a bullet hole. The investigation
also revealed a bullet hole in the windshield of the vehicle.
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K.T.1, who was fourteen years old at the time, testified that he was at his house on
May 9, 2020, for a cookout. Approximately ten people were present at the home, including
Defendant. Defendant was arguing with Keiron Nelson. At some point, Defendant left the
cookout. K.T. testified that he eventually observed Defendant return in a silver car.
Defendant and Mr. Nelson continued arguing, and K.T. observed that both men were
holding guns. K.T. heard “a lot” of gunshots then retreated into his residence with his
grandmother.
Defendant did not put on any proof at the revocation hearing. The trial court found
that each ground for revocation was established and fully revoked Defendant’s nine-year
sentence and ordered him to serve the remainder of the sentence in confinement.
Case Number 14504
In Giles County Circuit Court Case Number 14504, Defendant was charged with
selling cocaine in an amount of 0.5 grams or more within 1,000 feet of a park. On January
24, 2020, the State filed a notice of intent to seek enhanced punishment and corresponding
notice pursuant to Rule 609 of the Tennessee Rules of Evidence to impeach Defendant
with his prior convictions should he exercise his right to testify. Following a jury trial,
Defendant was found guilty of facilitating the sale of 0.5 grams or more of cocaine within
1,000 feet of a park, a Class C felony, and was sentenced as a Range II offender to serve
eight years and six months in the Tennessee Department of Correction to run consecutively
to his nine-year sentence.
Brandon Houston (“Mr. Houston”) was charged with facilitating the same drug
transaction for which Defendant stood trial. Mr. Houston had pled guilty as charged prior
to Defendant’s trial and testified at Defendant’s trial. During its direct examination, the
State asked Mr. Houston if he had pled guilty to the charge. Defendant objected arguing
that it was prejudicial and “irrelevant as it proves that he pled guilty to the extent that the
State is trying to link this up to facilitating the sale from [Defendant].” The State argued
that Mr. Houston’s guilty plea constituted “impeachment by felony conviction,” and that it
was relevant because “everything that happened on January 8, 2018, comes into play as far
as what this . . . witness knows.” The trial court overruled Defendant’s objection and Mr.
Houston testified that he had pled guilty to facilitation of the sale of 0.5 grams or more of
cocaine with an offense date of January 3, 2018.
Mr. Houston further testified that he had contacted Defendant via Snapchat about
obtaining cocaine from Defendant for Stephen Scott (“Mr. Scott”). Mr. Scott lived across
1
Because it is the policy of this court to protect the identity of minors, this witness will be
referenced by initials.
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the street from Mr. Houston’s aunt, and they “had met that way. And [they] had also served
weekends together.” Mr. Scott was actually a confidential informant (“C.I.”) with the
Pulaski Police Department. Mr. Houston testified that Defendant confirmed he was in
possession of cocaine and told Mr. Houston to meet him “down in the bottom” near “South
Rhodes Street.”2 At Mr. Houston’s instruction, Mr. Scott met him at the local Burger King
and from there, Mr. Houston “rode [with Mr. Scott] down there to the bottom” to meet
Defendant. When they arrived, both Mr. Houston and Mr. Scott got out of the vehicle.
According to Mr. Houston, Defendant’s vehicle was “full,” so he told Mr. Scott to stay
outside. Someone in Defendant’s vehicle thought Mr. Scott was “acting kind of funny,”
so Mr. Houston told Mr. Scott “to go sit in his car.” Mr. Houston testified that by the time
he told Mr. Scott to return to his vehicle, “he turned around and ‘boom,’ the drugs were in
his lap.”
Mr. Houston could not recall who had thrown the drugs to him, but he got out of
Defendant’s car, got back into Mr. Scott’s car, and put the drugs in the cup holder in Mr.
Scott’s car. During his testimony, Mr. Houston could not recall the type of vehicle
Defendant was driving or the names of the occupants of the vehicle. Mr. Houston could
not recall making any statements to Mr. Scott concerning Mr. Scott’s giving Mr. Houston
$200.00. Mr. Houston did, however, recall telling Mr. Scott that Defendant was in the car
at the time of the exchange. Because of Mr. Houston’s inability to recollect specific
portions of the incident in question, the State relied upon video footage of the incident to
refresh Mr. Houston’s recollection. Upon viewing the footage, Mr. Houston confirmed
that he asked Mr. Scott for $200.00 and that he had been in possession of the money at the
time of the exchange.
Following the review of the video footage, Mr. Houston agreed that he contacted
Defendant about purchasing cocaine and arranged a meeting spot but denied knowing who
was in the car during the actual purchase and denied handling any money, asserting that he
could not remember. Mr. Houston explained that he was not testifying voluntarily, and he
wanted “no part” of the trial.
Lieutenant Joey Turner (“Lieutenant Turner”) of the Pulaski Police Department
supervised the narcotics investigation in question. Lieutenant Turner testified that he was
an investigator for the City of Pulaski’s Police Department and was part of a group that
conducted surveillance on and video recorded the transaction between Defendant, Mr.
Scott and Mr. Houston. From his vantage point at South Rhodes Street and Madison Street,
Lieutenant Turner observed Mr. Houston and Mr. Scott entering and exiting Mr. Scott’s
2
The briefs are inconsistent in that the location is sometimes referred to as “South Rose
Street,” however, South Rhodes Street is the correct location and is referred to accordingly in this
opinion.
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vehicle as well as Defendant’s vehicle which he referred to as the “target vehicle.”
Lieutenant Turner admitted on cross examination that he did not directly identify
Defendant as one of the two passengers he observed in the vehicle. Lieutenant Turner
testified that only two individuals were in the target vehicle when the target vehicle
eventually drove away. The video confirmed the presence of only two people in the
vehicle.
Investigator Shirey, a narcotics investigator with the Pulaski Police Department,
testified that he worked with criminal informants and high crime areas in the community.
Mr. Scott was a C.I. who had worked with the Pulaski Police Department over a year and
a half. Prior to the transaction on January 8, 2018, the Pulaski Police Department was
“running a case” on both Quentin Coffey and Mr. Houston. When Mr. Coffey did not have
narcotics, Mr. Houston reached out to the Defendant. Investigator Shirey testified that he
met Mr. Scott at the police department to discuss a plan for the exchange in Defendant’s
case. The standard protocol for confidential informants was followed according to
Investigator Shirey, including thoroughly searching Mr. Scott and his vehicle and setting
up the camera system and recording devices to monitor the transaction. In this case, Mr.
Scott was paid $100.00 for his work as a C.I. Investigator Shirey gave Mr. Scott $230.00
to pay for the narcotics.
Investigator Shirey testified that following the exchange with Defendant, he
observed Mr. Houston return to Mr. Scott’s car and then observed Mr. Scott travel back to
Burger King, with Investigator Shirey and Lieutenant Turner trailing behind them. Upon
returning to Burger King, Mr. Houston exited Mr. Scott’s vehicle, and Mr. Scott spoke into
the recording to confirm that Mr. Houston had exited his vehicle, that Mr. Scott was in
possession of the cocaine, and that he was returning to the police department as instructed.
Investigator Shirey testified that there was nothing to indicate that the recording had
stopped or malfunctioned at any point. Investigator Shirey instructed Mr. Scott to leave
the cocaine and the recording device in the seat of the vehicle. Investigator Shirey then
took the cocaine from the vehicle and weighed and field-tested the product, which yielded
a cocaine positive result. The cocaine was then photographed, packaged, and sent to the
Tennessee Bureau of Investigation (“T.B.I.”) for testing. Mr. Scott was searched again and
found to have nothing illegal on him.
Investigator Shirey testified that the video recorded by Mr. Scott was beneficial as
to the “comings and goings” of Mr. Houston and Mr. Scott from Burger King to the meeting
with Defendant, but it did not obtain the transaction between Mr. Houston and Defendant.
Investigator Shirey further testified that the camera footage of Mr. Houston’s exchange
with Defendant, via Mr. Scott’s role as a C.I., was “excellent.” In the footage, Mr. Scott
can be seen travelling without making any detours to “the bottoms, which to the
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investigations, we know it’s South Rhodes Street” which Investigator Shirey measured as
419 feet from Pleasant Run Park—a drug-free zone.
Mr. Scott testified that he began working as an informant on December 18, 2017, in
exchange for leniency with respect to his various misdemeanor charges. On January 8,
2018, he arranged to purchase cocaine from Mr. Houston, but because Mr. Houston did not
have any cocaine, Mr. Houston contacted Defendant to provide cocaine for the sale. Mr.
Scott and Mr. Houston set up a time, place, price and quantity for the exchange. Prior to
the exchange, Mr. Scott met with investigators, was searched, was given $230 for the
purchase, was “wired up” and given a camera. He then met Mr. Houston at Burger King
where Mr. Houston got into his car, and they left to go to Rhodes Street. Mr. Scott testified
that he asked to purchase an “eight ball,” which was 3.5 grams of cocaine. Mr. Scott and
Mr. Houston pulled up in front of a truck on Rhodes Street, and both got out of Mr. Scott’s
vehicle and walked past the truck to a silver car. He identified Defendant as sitting in the
passenger seat of the silver car. Mr. Houston got in the car and told Mr. Scott to give him
the money and go back to Mr. Scott’s car. Mr. Scott stood at the back of the car while Mr.
Houston got into the backseat of the car. He saw Mr. Houston hand the money to
Defendant over his shoulder and saw Defendant give the “stuff” to Mr. Houston. Once
Mr. Scott and Mr. Houston were both back in Mr. Scott’s car, Mr. Houston handed Mr.
Scott the cocaine. Mr. Scott reviewed the surveillance video of the transaction and
identified the parties involved and narrated what he was doing and what he observed during
the transaction.
Special Agent Brandy Fisher Brown, a forensic scientist with the T.B.I., testified as
an expert in forensic chemistry, specifically in the field of the identification and weight of
controlled substances. Agent Brown received and tested the substance sent to her in a
plastic sandwich bag and found that it tested positive for cocaine and weighed 3.28 grams.
Defendant elected not to testify or otherwise put on any proof. Following jury
instructions and closing arguments, the jury found Defendant guilty of the lesser included
offense of facilitating the sale of 0.5 grams or more of cocaine within 1,000 feet of a park.
At a sentencing hearing on July 30, 2020, the trial court sentenced Defendant as a
Range II offender to serve eight years and six months in the Tennessee Department of
Correction and ordered his sentence to run consecutively to his nine-year sentence in Giles
County Circuit Court Case Number 14412. Defendant now appeals as of right the decisions
in both cases, Case Numbers 14412 and 14504.
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Analysis
On appeal, Defendant first argues that the trial court abused its discretion in fully
revoking his probation in Case Number 14412 and ordering him to serve the remainder of
his nine-year sentence in confinement. The State argues that the trial court properly
exercised its discretion when it found by a preponderance of the evidence that Defendant
had violated the terms of his probation. We agree with the State.
Defendant further argues that the trial court erred in admitting Mr. Houston’s guilty
plea into evidence and that the evidence was insufficient to uphold his conviction in Case
Number 14054. The State contends that Defendant waived his argument to the admission
of Mr. Houston’s guilty plea by failing to request a curative instruction, and by failing to
raise the argument that Mr. Houston’s guilty plea bolstered his testimony. The State also
contends that the evidence was sufficient to uphold Defendant’s conviction in Case
Number 14054. We agree with the State that Defendant’s failure to request a curative
instruction constituted a waiver of his claim, but we nonetheless review for plain error.
While Defendant did sufficiently raise the argument in his motion for new trial, he is not
entitled to relief on this claim. We agree with the State that the evidence was sufficient to
uphold the conviction.
Full Revocation of Probation
Defendant argues that there was a lack of proof as to who fired the first shot during
the incident near the residence on Childers Street, and because of this, the trial court should
have ordered a partial revocation and reinstated Defendant to probation. The State
contends that the testimony of K.T. supports the allegation that Defendant fired the first
shot, but even without that evidence, there was sufficient evidence to support the trial
court’s decision to find Defendant in violation and to fully revoke his sentence of probation.
We agree with the State.
This court reviews challenges to the length, range, or manner of service of a sentence
under an abuse of discretion standard with a presumption of reasonableness. See State v.
Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This standard also applies to probation
revocation proceedings. State v. Casey Dupra Drennon, No. M2014-02366-CCA-R3-CD,
2015 WL 6437212 (Tenn. Crim. App., at Nashville, Oct. 23, 2015). A trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion,
bases its ruling on a clearly erroneous assessment of the proof, or applies reasoning that
causes an injustice to the complaining party. State v. Phelps, 329 S.W.3d 436, 443 (Tenn.
2010).
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When a trial court finds by a preponderance of the evidence that a defendant has
violated the conditions of probation, the court “shall have the right ... to revoke the
probation.” T.C.A. § 40-35-311(e)(1). Upon revocation, the trial court may return a
defendant to probation with modified conditions as necessary, extend the period of
probation by no more than two years, order a period of confinement, or order the
defendant’s sentence into execution as originally entered. T.C.A. §§ 40-35-308(a), (c), -
310. See State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999) (Before appellant could
successfully his initial two-year probationary term, he repeatedly violated the conditions
of his probation. The trial court had the authority to revoke probation and order service of
the original sentence because appellant had failed to complete an entire probationary period
at the time that the violations occurred.) Moreover, an accused who is already on probation
is not entitled to a second grant of probation or another form of alternative sentencing.
State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn.
Crim. App., at Nashville, Feb. 10, 1999). Revocation may be based on acts committed
prior to the probationary period which were unknown to the court at the time of the grant
of probation. State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997).
Here, Defendant contends that the trial court abused its discretion in fully revoking
his probation because the proof did not establish that he fired the first shot of the shooting
incident at the residence on Childers Street. Defendant alleges that the proof does not
negate the viability of a self-defense theory because the proof does not definitively indicate
that Defendant fired the first shot. However, Defendant does not dispute that “there are
certainly grounds” for a violation of the terms of Defendant’s probation.
K.T. testified that he observed both Defendant and his cousin in possession of guns.
He heard his cousin arguing with Defendant, then saw his cousin disarmed. After seeing
his cousin disarmed, K.T. heard the first shot. The record supports the trial court’s finding
that Defendant violated the terms of his probation by being in possession of a firearm,
regardless of who fired the first shot. Once the trial court has found that a Defendant has
violated the terms of his probation, it retains discretionary authority, pursuant to Tennessee
Code Annotated section 40-35-310(b), to revoke the probation and order Defendant to
serve his sentence in confinement. The determination of the proper consequence of a
probation violation embodies a separate exercise of discretion. Hunter, 1 S.W.3d at 647.
Further, an accused who has already been granted probation is not entitled to either a
second grant of probation or another form of alternative sentencing. Jeffrey A. Warfield,
1999 WL 61065, at *2.
The record reflects the fact that Defendant was in possession of a firearm, which is
a violation of the terms of his probation. It was within the trial court’s discretion to fully
revoke Defendant’s probation. Accordingly, Defendant is not entitled to relief on this
claim.
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Introduction into Evidence of Mr. Houston’s Guilty Plea
On appeal, Defendant argues that the admission at trial of Mr. Houston’s guilty plea
was error and a violation of the trial court’s discretion because the evidence was irrelevant,
unfairly prejudicial and bolstered Mr. Houston’s testimony with impermissible extrinsic
evidence. In response, the State argues that Defendant waived his argument that the guilty
plea bolstered Mr. Houston’s testimony by failing to raise it before the trial court and
further that Defendant waived this argument by failing to request a curative instruction
after the evidence was admitted during trial. Defendant objected to the evidence at trial.
At the hearing on the motion for new trial, Defendant’s argument, while sparse, could be
interpreted to include a bolstering argument. However, Defendant did not request a
curative jury instruction after evidence of Mr. Houston’s guilty plea was entered;
accordingly Defendant has waived this argument. Nonetheless, we review this issue for
plain error and further conclude that the admission of Mr. Houston’s guilty plea was not
error for which Defendant is entitled to relief.
A party is bound by the grounds asserted when making an objection. State v.
Adkisson, 899 S.W.2d 626, 634-635 (Tenn. Crim. App. 1994). The party cannot assert a
new or different theory to support the objection in the motion for a new trial or in the
appellate court. Id. When a party abandons the ground asserted when the objection was
made and asserts completely different grounds in the motion for a new trial and in this
court, the party waives the issue. State v. Terry Norris, No. W2000-00707-CCA-R3-CD,
2014 WL 6482823, at *12 (Tenn. Crim. App., at Jackson, Nov. 18, 2014). An appellate
court will limit its decision to the ground asserted when the trial court made its ruling. Id.Nonetheless, we may still review the issue for plain error. Adkisson, 899 S.W.2d at 634-
635.
“[A] defendant is not entitled to relief when he or she ‘failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of an error.’” State v.
Debiasi Sirnard King, No. E2002-00634-CCA-R3-CD, 2003 WL 21261775, at *4 (Tenn.
Crim. App., at Knoxville, June 2, 2003) (quoting Tenn. R. App. P. 36(a)). “When a
defendant fails to request a curative instruction, he waives the issue on appeal.” See State
v. Trenton Jermaine Bell, No. M2019-01810-CCA-R3-CD, 2021 WL 794771, at *6 (Tenn.
Crim. App., at Nashville, Mar. 2, 2021) perm. app. denied (Tenn. May 13, 2021) (citing
State v. Jones, 733 S.W.2d 517, 522 (Tenn. Crim. App. 1987)). A trial court should give
a curative instruction once an objection has been made. State v. Griffis, 964 S.W.2d 577,
599 (Tenn. Crim. App. 1997). If the trial court fails to give a curative instruction sua
sponte, counsel has the obligation to request the trial court to give a curative instruction.
Id. If a party fails to request a curative instruction, or, if dissatisfied with the instruction
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given and fails to request a more complete instruction, the party effectively waives the
issue for appellate purposes. Id. “The presumption is that a jury follows the instructions
of the court.” State v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983). “In order
to overcome this presumption, an accused must show by clear and convincing evidence
that such instruction was not followed.” Id.; see also State v. Cory Campbell, No. W2005-
01418-CCA-R3-CD, 2006 WL 3147050, at *6 (Tenn. Crim. App., at Jackson, Nov. 3,
2006).
This court may, in the exercise of its discretion, consider an issue which has been
waived due to a procedural default, waived due to a change in legal theory, or has not been
presented for review by either party. Adkisson, 899 S.W.2d at 636. This court may
consider other issues: (1) to prevent needless litigation, (2) to prevent injury to the interests
of the public, (3) to prevent prejudice to the judicial process, and (4) to prevent manifest
injustice or to do substantial justice. Id. at 638. Before an error may be recognized pursuant
to Rule 36(b) of Tennessee’s Rules of Appellate Procedure, the error must be plain. Tenn.
R. App. P. 36. Under plain error review, relief will only be granted when five prerequisites
are met: (1) the record clearly establishes what occurred in the trial court, (2) a clear and
unequivocal rule of law was breached, (3) a substantial right of the accused was adversely
affected, (4) the accused did not waive the issue for tactical reasons, and (5) consideration
of the error is necessary to do substantial justice. State v. Banks, 271 S.W.3d 90, 120 (Tenn.
2008) (citing State v. Gomez, 239 S.W.3d 733, 737 (Tenn. 2007)).
Questions concerning the admissibility of evidence rest within the sound discretion
of the trial court, and this court will not interfere in the absence of abuse appearing on the
face of the record. State v. Plyant, 263 S.W.3d 854, 870 (Tenn. 2008). A trial court abuses
its discretion when it “applies an incorrect legal standard or reaches a conclusion that is
‘illogical or unreasonable and causes an injustice to the party complaining.’” Id. The State
is entitled to impeach its own witness. See Tenn. R. Evid. 607 (“[t]he credibility of a
witness may be attacked by any party, including the party calling the witness . . . so long
as the questioning is not a pretext for putting inadmissible hearsay before the jury.”); State
v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1999); State v. Troy Jones, No. M2018-
00200-CCA-R3-CD, 2019 WL 2371945, at *9 (Tenn. Crim. App., at Nashville, June 5,
2019) perm. app. denied (Tenn. Sept. 18, 2019).
Here, Mr. Houston, a co-defendant, was charged with facilitating the same offense
for which Defendant was charged. Mr. Houston testified pursuant to a subpoena and made
clear that he did not wish to testify. Following Defendant’s objection, the State argued in
a bench conference that Mr. Houston’s guilty plea was admissible as impeachment “by
felony of conviction” and “absolutely relevant.” The trial court overruled the objection.
Throughout his testimony, Mr. Houston equivocated in his responses and admitted that he
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did not want to testify or be a part of the trial. The record supports the admission of the
guilty plea for impeachment purposes.
At no time before the jury was instructed did Defendant request a curative
instruction regarding Mr. Houston’s guilty plea, nor did he object when the standard jury
instruction on impeachment was delivered to the jury. The trial court instructed the jury
on impeachment evidence:
A witness may be impeached by proving that he or she has
made material statements out of court which are now at
variance with the witness’ testimony while on the witness
stand; however, proof of any prior inconsistent statements may
be considered by you only for the purpose of judging that
witness’ credibility, and not as substantive evidence of the
truth of the matter asserted in those statements.
A witness may be impeached by careful cross-examination
involving the witness in contradictory, unreasonable, and
improbably statement; however, immaterial discrepancies or
differences in the statements of witness do not affect their
credibility unless it should plainly appear that some witness
willfully testifies falsely.
When a witness is thus impeached, the Jury has the right to
disregard his or her testimony and treat it as untrue, except
where it is corroborated by other credible testimony, or by the
facts and circumstances proven at this trial.
The jury received this standard instruction on impeachment despite Defendant’s
failure to request a curative instruction when the trial court overruled his objection.
Moreover, we note that in Defendant’s brief, he indicated that he intended to file a motion
to supplement the record with the transcript of the jury instructions, but there is no evidence
in the record that he did so. Therefore, the only jury instructions we have to consider are
those written instructions contained in the technical record. The jury is presumed to have
followed those instructions. Vanzant, 659 S.W.2d at 819. Defendant has presented no
evidence that the jury disregarded the court’s instruction so as to overcome the
presumption. Absent evidence to overcome the presumption that the jury followed the trial
court’s instruction, Defendant is not entitled to argue that Mr. Houston’s guilty plea
influenced the jury to reach the same conclusion regarding Defendant’s charge because the
jury was instructed that the impeachment evidence was not substantive evidence. No clear
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and unequivocal rule of law has been broken. Banks, 271 S.W.3d at 120. Defendant is not
entitled to plain error relief.
We now turn to consider whether the court erred by admitting Mr. Houston’s guilty
plea at trial. Issues of admissibility fall within the discretion of the trial court and will not
be overturned in the absence of abuse of such discretion. Here, Defendant’s written motion
for a new trial stated: “The Court erred in allowing the introduction of evidence to the jury
that co-defendant Brandon Houston pled guilty to facilitation of a felony, sale of cocaine
over .5 grams, in the instant case.” In the hearing on the motion for new trial, trial counsel
stated:
I thought 100 percent the purpose of submitting [Mr. Houston’s guilty plea] to a
jury was to say, look, [Mr. Houston] pled guilty to facilitation of a sale because
[Defendant] is guilty of a sale. And I think that is an improper use of bringing in
somebody’s conviction in that respect.
Defendant’s argument could be interpreted to encompass his position that Mr. Houston’s
guilty plea bolstered his testimony with impermissible extrinsic evidence. We conclude
that the introduction of Mr. Houston’s guilty plea was a proper impeachment of a reluctant
and equivocating witness and that the trial court’s standard jury instruction on
impeachment evidence was sufficient absent any request for any other curative instruction
by Defendant. Griffis, 964 S.W.2d at 599. We conclude that the trial court did not abuse
its discretion in admitting the evidence of Mr. Houston’s guilty plea for purposes of
impeachment. Accordingly, Defendant is not entitled to relief on this claim.
Sufficiency of the Evidence
On appeal, Defendant claims that the evidence as to his conviction for facilitating
the sale of 0.5 grams or more of cocaine within 1,000 feet of a park in Case Number 14504
is insufficient. Defendant essentially launches a credibility argument against Mr. Houston
and Mr. Scott implying that their testimonies were not credible enough to constitute
sufficient evidence. Defendant also alleges that the lack of video evidence of Defendant’s
involvement in the drug transaction renders the evidence against him insufficient to
convict.
It is an offense for a defendant to knowingly sell a controlled substance; or possess
a controlled substance with intent to manufacture, deliver or sell the controlled substance.
T.C.A. § 39-17-417(a)(3)-(4). A person is criminally responsible for the facilitation of a
felony, if, knowing that another intends to commit a specific felony, but without the intent
required for criminal responsibility under section 39-11-402(2), the person knowingly
furnishes substantial assistance in the commission of the felony.” T.C.A. § 39-11-403(a).
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When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal
to demonstrate why the evidence is insufficient to support the conviction. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). Therefore, this Court will afford the State “the
strongest legitimate view of the evidence, as well as all reasonable and legitimate
inferences that may be drawn therefrom.” Id. The relevant question the reviewing court
must answer is whether any rational trier of fact could have found the accused guilty of
every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the
strongest legitimate view of the evidence and to all reasonable and legitimate inferences
that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As
such, this court is precluded from re-weighing or reconsidering the evidence when
evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App.
1996). Moreover, we may not substitute our own “inferences for those drawn by the trier
of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990).
The credibility of witnesses is a determination for the jury. State v. Boyd, 797
S.W.2d 589, 593 (Tenn. 1990). This court may not reweigh or re-evaluate the credibility
of witnesses. State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim. App. 1999).
Defendant alleges insufficiency of the evidence against him in Case Number 14504
because he contends that neither Mr. Scott nor Mr. Houston were credible witnesses. In
fact, Mr. Scott and Mr. Houston were not the State’s only witnesses. Lieutenant Joey
Turner, Investigator Gerrod Shirey and Special Agent Brandy Fisher Brown testified
regarding their investigations of the alleged drug sale. Mr. Houston testified that he
contacted Defendant to purchase drugs for Mr. Scott and coordinated a plan for the sale to
occur, including time, place, price and quantity. Defendant was observed to be present in
the vehicle when the exchange of money for cocaine occurred. The substance obtained
from Defendant’s vehicle tested positive as cocaine and weighed 3.28 grams. The C.I.
tasked with buying the cocaine identified Defendant in the vehicle. The C.I. followed the
plan set by Defendant in his communication with Mr. Houston. The evidence establishes
that Defendant substantially furnished assistance in the commission of the felony of the
sale of cocaine. Viewing the proof in the light most favorable to the State and discarding
all countervailing proof, a reasonable jury could conclude that Defendant facilitated the
sale of 0.5 grams or more of cocaine within 1,000 feet of a park. Thus, the proof is therefore
sufficient to support Defendant’s conviction.
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Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
JILL BARTEE AYERS, JUDGE
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