State vs.Tony Armstrong ( 2010 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 9,1999
DECEMBER 1998 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, * No. 01C01-9802-CR-00062
APPELLEE, * Davidson County
VS. * Honorable Thomas H. Shriver, Judge
TONY ARMSTRONG, * (Sale of Cocaine)
APPELLANT. *
For Appellant: For Appellee:
Dwight E. Scott John Knox Walkup
4024 Colorado Avenue Attorney General and Reporter
Nashville, TN 37209 425 Fifth Avenue North
Nashville, TN 37243-0493
Daryl J. Brand
Senior Counsel
425 Fifth Avenue North
Nashville, TN 37243-0493
Erik W. Daab
Legal Assistant
425 Fifth Avenue North
Nashville, TN 37243-0493
Jon Seaborg
Assistant District Attorney General
Washington Square Building
222 2nd Avenue, North
Nashville, TN 37201
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
1
The appellant, Tony Armstrong, appeals as of right his conviction by a jury in
the Criminal Court for Davidson County of the sale of less than .5 grams of cocaine,
a Class C felony. The trial court sentenced the appellant as a standard, Range I
offender to four years incarceration and suspended all but one year of the
appellant’s sentence. The sole issue on appeal is the sufficiency of the evidence
adduced at trial to sustain the jury’s verdict. Following a thorough review of the
record, we affirm the judgment of the trial court.
I. Factual Background
On November 2, 1995, a Davidson County grand jury indicted the appellant
for selling less than .5 grams of cocaine on August 29, 1995. The trial court
conducted the appellant’s trial on August 26, 27, and 28, 1997. The State initially
presented the testimony of Officer Anita Prather, an undercover police officer and a
member of the Crime Suppression Unit of the Metropolitan Nashville Police
Department. Officer Prather testified that, as an undercover police officer, she
“purchase[d] drugs from street level dealers.” She explained that, generally, her
supervisor would select a location in Nashville where the Police Department had
received numerous reports of drug-related activity. The undercover officers would
then attempt to purchase drugs, including marijuana and cocaine, using “buy
money” that had previously been photocopied in order to record the serial numbers
on the bills. The undercover officers would remain in contact with their unit through
radio transmitters. In this manner, they could relate the details of any ongoing
transaction, including a description of the dealer and a description of the type and
amount of drugs.
With respect to the appellant’s offense, Officer Prather testified that, on the
evening of August 29, 1995, she was working undercover in North Nashville with the
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Crime Suppression Unit. She and another officer, Ernest Cecil, were driving an
unmarked police car and wearing civilian clothing. They observed the appellant
standing on a street corner, and stopped their vehicle in order to ask the appellant if
he “knew where [they] could get some ready.” Officer Prather explained at trial that
“ready” is a slang term meaning crack cocaine. The appellant asked Officer Prather
to park her car. He then walked across the street and spoke briefly with another
man. Following this conversation, the appellant asked Officer Prather to drive her
car around the corner and park. She then observed the man to whom the appellant
had been speaking produce a small bottle, at which time the appellant and his
companion approached two other gentlemen. Officer Prather testified that an
exchange occurred between two of the appellant’s companions, one of whom sold
Officer Prather a rock of crack cocaine.
Following the sale, Officer Cecil communicated to other members of the Unit
that the purchase had been completed and described the participants. At least six
officers arrived at the location of the drug transaction and arrested the appellant and
his companions. Officer Prather did not observe the arrest of the appellant. Rather,
she and Officer Cecil began to complete the necessary paperwork, including
marking any evidence recovered during the transaction and as a result of the
arrests. Using a kit provided by the Police Department, the officers tested the rock
of crack cocaine in order to confirm that it contained cocaine and then sent the
evidence to the Tennessee Bureau of Investigation Crime Lab. At trial, Officer
Prather positively identified the appellant as the individual who orchestrated the drug
transaction.
The State also presented the testimony of Patty Choatie, a forensic scientist
at the Tennessee Bureau of Investigation Crime Lab, specializing in drug chemistry.
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She testified that the item purchased by Officer Prather weighed 0.05 grams. She
also confirmed that the substance was, in fact, cocaine.
The State then called Officer Chris Taylor to the witness stand. He testified
that, at the time of the instant offense, he was a member of the Crime Suppression
Unit of the Metropolitan Nashville Police Department. Officer Taylor testified that,
on August 29, 1995, pursuant to Officer Prather and Officer Cecil’s description, he
and Officer Dupree arrested the appellant. He searched the appellant’s pockets and
found the buy money in the right front pocket of the appellant’s pants. Officer Taylor
also positively identified the appellant at trial.
During cross-examination by the appellant’s attorney and during the
presentation of the appellant’s case, Officer Taylor conceded that he had testified at
a preliminary hearing on September 5, 1995, in the case of one of the participants in
the drug transaction. However, he could not recall testifying at the hearing. He
further conceded that he had stated at the preliminary hearing that he did not
recover the buy money from Officer Prather’s drug purchase. Again, however, he
could not recall his testimony. Officer Taylor explained that, at the time of the
appellant’s arrest, he was participating in approximately seventy arrests each month
and, as a member of the Crime Suppression Unit, had probably participated in as
many as four hundred arrests prior to August 29, 1995. Additionally, he stated that,
at the time of the September 5, 1995, preliminary hearing, he was testifying in as
many as ten or twelve cases each day that he attended court. Since that time, he
had participated in approximately two thousand cases. Officer Taylor submitted that
his testimony at trial, that he had himself recovered the buy money, was based upon
his review of Officer Prather’s report, which was prepared immediately following the
appellant’s arrest. He remarked, “[W]ithout those reports, [the arrests] would all run
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together really bad.”
Finally, the State called Officer Lee Dupree. Officer Dupree was also a
member of the Crime Suppression Unit at the time of the appellant’s offense. On
the evening in question, he assisted Officer Taylor in arresting the appellant. He
confirmed that Officer Taylor searched the appellant and that Officer Taylor
recovered the buy money from the right front pocket of the appellant’s pants.
The appellant testified on his own behalf. He stated that on the evening of
his arrest he was walking to a friend’s house. Officer Prather approached him and
asked whether or not he knew of a location where she could purchase drugs. He
responded that she might be able to buy drugs “down the street.” While Officer
Prather drove further down the street, the appellant remained on the street corner,
as he was, “you know, just hanging out.” Accordingly, he observed an exchange
between Officer Prather and several men with whom he was casually acquainted.
Soon thereafter, according to the appellant, the police arrived and arrested these
acquaintances. Because he was curious, the appellant walked down the street
toward the scene of the arrests. At that time, several officers arrested him. The
appellant stated that he did not attempt to flee from the police. He conceded,
however, that he gave the police a false name and false information about his
employment. He explained that he gave the police false information because he
was “afraid and scared.” He was particularly concerned that news of his arrest
might reach his employers. The appellant denied selling cocaine to Officer Prather
and denied that the police found the buy money in his possession.
II. Analysis
The appellant contends that the evidence presented during his trial is
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insufficient to prove his guilt beyond a reasonable doubt. In Tennessee, appellate
courts accord considerable weight to the verdict of a jury in a criminal trial. In
essence, a jury conviction removes the presumption of the defendant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of
demonstrating to this court why the evidence will not support the jury’s findings.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish
that no “reasonable trier of fact” could have found the essential elements of the
offense of sale of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).
Accordingly, on appeal, the State is entitled to the strongest legitimate view
of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions
concerning the credibility of witnesses and the weight and value to be given the
evidence, as well as all factual issues raised by the evidence, are resolved by the
trier of fact, and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).
In the instant case, the appellant was convicted pursuant to Tenn. Code Ann.
§ 39-17-417(a)(3) (1995) of selling cocaine weighing less that .5 grams. The statute
provides that the State must prove beyond a reasonable doubt the following
essential elements: (1) the defendant sold cocaine; and (2) the defendant acted
knowingly. Tenn. Code Ann. § 39-17-417(a)(3). The appellant correctly points out
that it is undisputed that he neither directly delivered the cocaine to Officer Prather
nor did he receive the buy money directly from the Officer. However, it is not
necessary that a defendant personally engage in the actual transfer of drugs in
exchange for money in order to be found guilty of the sale of cocaine. See State v.
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Henning, No. 02C01-9404-CC-00079, 1994 WL 583311, at *2 (Tenn. Crim. App. at
Jackson, October 26, 1994). In any event, the record reflects that the jury in this
case was instructed on the theory of criminal responsibility for the conduct of
another.1 Tenn. Code Ann. §39-11-401 (1995) provides that “ [a] person is
criminally responsible as a party to an offense [ and may be charged with the
commission of the offense] if the offense is committed by... the conduct of another
for which the person is criminally responsible...” Tenn. Code Ann. § 39-11-402 (2)
(1995) further provides that a person is criminally responsible for the conduct of
another if, “[a]cting with intent to promote or assist the commission of the offense, or
to benefit in the proceeds or results of the offense, the person solicits, directs, aids,
or attempts to aid another person to commit the offense.”
In State v. Greenwood, No. 01C01-9109-CR-00280, 1992 WL 50962, at *2
(Tenn. Crim. App. At Nashville, March 19, 1992) this court approved the application
of the theory of criminal responsibility to the offense of selling cocaine for the
purpose of charging and convicting parties to the drug transaction other than the
actual source of the cocaine. See also State v. Porter, No. 02C01-9501-CC-00029,
1997 WL 399335, at *2 (Tenn. Crim. App. At Jackson, July 16, 1997) perm. To
appeal granted, (Tenn. 1998). In this case, the evidence at trial, viewed in the light
most favorable to the State, established that the appellant directed Officer Prather to
a location where she could purchase cocaine; the appellant consulted with several
acquaintances, one of whom delivered the cocaine to Officer Prather and directly
1. The record does not include the jury instructions. However, in responding to a question by the
jurors during the course of their deliberations, the judge re-read portions of the jury instructions,
including an instruction on the theory of criminal responsibility for the conduct of another. We
further note that, although the record does not reflect whether or not the State proceeded solely
upon the theory of criminal responsibility for the conduct of another, there was no danger in this
case of a “patchwork verdict” regarding the facts of the offense.” Contrast State v. Prude, No.
02C01-9711-CR-00425, 1998 WL 467096, at * 4-5 (Tenn. Crim. App. at Jackson, August 12,
1998). At trial, the jury was presented with only one set of facts upon which it could base a
finding of guilt.
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received the buy money; and the appellant acquired possession of the buy money
soon after the transaction. The State may prove a criminal offense by direct
evidence, circumstantial evidence, or a combination of the two. State v. Tharpe, 726
S.W. 2d 896,899-900 (Tenn. 1987). Moreover, circumstantial evidence may
establish the mental state required for the commission of the offense. State v.
Rhodes, No. 02C01-9406-CC-00124, 1995 WL 425046, at *5 (Tenn. Crim. App. At
Jackson, July 19, 1995). We conclude that the evidence in this case is sufficient to
support the appellant’s conviction.2
Nevertheless, the appellant argues in his brief that, “[b]ecause the testifying
police officers provided contradictory, suspect, and unreliable testimony, the
evidence was insufficient for a rational trier of fact to find beyond a reasonable doubt
that the Defendant was guilty of sale of cocaine.”
The appellant particularly focuses upon the contradictory testimony of Officer
Taylor. As noted earlier, at the September 5, 1995, preliminary hearing, Officer
Taylor testified that he had not personally recovered the buy money from Officer
Prather’s August 29, 1995, drug transaction. In contrast, at trial he testified that he
personally searched the appellant and recovered the buy money. This court has
previously held that “[i]t is a rule of law in Tennessee that contradictory statements
by a witness in connection with the same fact cancel each other.” State v. Matthews,
888 S.W. 2d 446,449-450 (Tenn. Crim. App. 1993). However, we further noted that
this rule of law is only applicable when the inconsistency is unexplained and when
neither version of the witness’ testimony is corroborated by other evidence. Id. at
2
The Appellant argues that, at most, he was guilty of criminal responsibility for
facilitation of a felony pursuant to Tenn. Code Ann. §39-11-403 (1995). However, this
statue applies if the State is unable to establish the intent required for criminal
responsibility. Id. at (a). Again, the State adduced sufficient evidence at trial to establish
the requisite intent.
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450. During the trial of the appellant, Officer Taylor explained that his extensive
caseload could result in faulty recollection of events absent recourse to the police
report. He also testified at trial that he had reviewed Officer Prather’s report prior to
the trial in order to refresh his memory. Additionally, his testimony at trial was
corroborated by the testimony of Officer Dupree.3
“A jury verdict approved by the trial judge accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the State’s theory.” State
v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983) The jury in this case chose to
believe Officer Taylor’s and Officer Dupree’s testimony that the buy money was
discovered in the appellant’s pocket following the drug transaction. The appellant’s
possession of the buy money immediately following the sale, combined with his role
in arranging the drug transaction, are sufficient facts upon which the jury could have
based its verdict. We conclude that the evidence in the instant case supports the
judgment of the trial court.
For the reasons stated above, we AFFIRM the judgment of the trial court.
Norma McGee Ogle, Judge
CONCUR:
John H.Peay, Judge
Joseph M. Tipton, Judge
3
Contrary to the appellant’s assertion in his brief, the record is devoid of evidence
that the officers in this case “had a private agenda to convict the Defendant.”
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