State of Tennessee v. Robert A. Cantrell

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 9, 2010 Session
STATE OF TENNESSEE v. ROBERT A. CANTRELL
Direct Appeal from the Circuit Court for Rutherford County
No. 61657 David M. Bragg, Judge
No. M2009-02274-CCA-R3-CD - Filed January 25, 2011
The defendant, Robert A. Cantrell, was convicted by a Rutherford County jury of the sale of
.5 grams or more of cocaine, a Class B felony, and was sentenced by the trial court as a
Range II multiple offender to sixteen years in the Department of Correction. He raises three
issues on appeal: (1) whether the trial court erred by not declaring a mistrial following a
bomb threat and ensuing building evacuation that took place during voir dire; (2) whether his
right to trial by a fair and impartial jury was prejudiced by the jurors’ exposure to the bomb
threat and publicity surrounding the case; and (3) whether the evidence was sufficient to
sustain the conviction. Following our review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J AMES C URWOOD W ITT, J R., JJ., joined.
Joe M. Brandon, Jr., Smyrna, Tennessee, for the appellant, Robert A. Cantrell.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Thomas E. Parkerson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On June 4, 2008, the Rutherford County Grand Jury indicted the defendant for one
count of the sale of less than .5 grams of cocaine and three counts of the sale of .5 grams or
more of cocaine. The charges were based on drug transactions that took place on January 8,
9, 11, and 23, 2008, between the defendant and a confidential informant employed by the
Rutherford County Sheriff’s Department. At the conclusion of a jury trial, the defendant was
convicted of the sale of .5 grams or more of cocaine based on the January 9 transaction and
acquitted of the other counts of the indictment. We will, therefore, confine our summary of
the facts to the evidence relevant to the January 9 transaction.
The confidential informant described the basic procedure employed in the undercover
transactions, testifying that the detectives searched his person and vehicle both before and
after the sales, gave him the cash to pay for the drugs, and followed him to and from the
locations where the sales took place. In addition, the detectives wired him for audio
recordings in the first three transactions and had him wear a hidden video camera in the
January 9 transaction. The informant identified the audio and video recordings of the
January 9 transaction and made a positive courtroom identification of the defendant as the
individual depicted in the recording.
The informant testified that the detectives instructed him to purchase $400 worth of
cocaine in the January 9 transaction. However, the amount of cocaine that the defendant
gave him “looked small” so he tried to pay the defendant only $200. The defendant told him
that he was “a dollar short,” so the informant “counted the money back out, laid it on the
washer or dryer, . . . and [the defendant] took the money.” Afterwards, the informant got
back in his vehicle and drove to the meeting site with the detectives, where he gave them the
drugs he had purchased, returned the $100 he had not used in the transaction, and had his
vehicle and person searched again. The informant stated that, according to the defendant,
the drugs he purchased were “supposed to be two grams of crack cocaine and a gram of
powder cocaine.”
The informant testified that he had considered the defendant a friend and that they had
“r[u]n around and sold drugs together” in the past. He acknowledged that he had numerous
prior convictions in Rutherford County, marijuana and “stolen possession” charges in
Cheatham County that had been nolle prosequied after he had contacted the detectives about
working as an informant, and a pending charge for aggravated burglary in Rutherford
County. He said he was motivated to act as a confidential informant because he wanted help
on his cases, was “tired of living that lifestyle,” and wanted to distance himself from his
former associates. He never, however, was promised anything on any of his cases.
On cross-examination, the informant pleaded the Fifth Amendment with respect to the
details of his pending aggravated burglary case but acknowledged that he had been arrested
on April 17, 2008, and charged with burglarizing a man’s home. He further acknowledged
that he was paid $150 for his work as an informant and in addition had his charges in
Cheatham County dismissed. He denied that he was under the influence at the time of the
drug transactions.
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Detective Jeremy Weaver of the Rutherford County Sheriff’s Department testified that
he was assigned to the narcotics division and was involved in various capacities with the
drug transactions at issue in the case. Assigned to surveillance during the January 9
transaction, he followed the informant to an apartment, watched as he entered the apartment
and emerged again a few minutes later, and then followed him as he drove directly to the
“meet site.”
Detective Jamin Humphress of the Rutherford County Sheriff’s Department testified
that he was assigned to the narcotics division and was involved with two of the four drug
transactions in the case. During the January 9 transaction, his role involved placing
surveillance equipment in the informant’s vehicle, wiring the informant’s person, and
thoroughly searching the vehicle before and after the transaction. He described the process
he employed during the searches and said he found no drugs in the vehicle during either
search. On cross-examination, he said he could not recall if he searched the vehicle’s vents.
Lieutenant Philip Martin identified the evidence envelope containing the rock-like and
powder substances from the January 9 transaction, which he said he transported to the
Tennessee Bureau of Investigation (“TBI”) for analysis.
TBI Special Agent Denotria Patterson, the forensic scientist who analyzed the
substances from the January 9 transaction, determined that they consisted of .9 grams of
powder cocaine and .6 grams of crack cocaine.
Detective Tony Hall of the Rutherford County Sheriff’s Department, the lead
investigator in the case, testified that the January 9 transaction took place at the defendant’s
residence. He said he searched the informant before and after the transaction to ensure he
had no contraband on his person, gave him $400 in prerecorded bills, and followed him to
the site of the first transaction, where the informant made a telephone call to the defendant
and was instructed by the defendant to come to his apartment. He then followed the
informant to the defendant’s apartment, where the deal took place. Detective Hall identified
the videotape of the transaction, which was played for the jury. He said that after the
transaction the informant returned the additional $100 he had given him and turned over the
powder and crack cocaine he had purchased.
On cross-examination, Detective Hall testified that he first came into contact with the
informant after the informant, a convicted felon, was caught with a 9 millimeter gun that had
been stolen in a home burglary in Rutherford County. He repeated that he had thoroughly
searched the informant before and after the drug transactions but acknowledged that he did
not check the informant’s underwear or between his buttocks. He further acknowledged that
there were no tape recordings of the informant’s telephone calls arranging the transactions
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and that he heard only the informant’s side of the conversations. Finally, he testified that the
informant had paid approximately twice the street value for the cocaine he received in the
January 9 transaction, which Detective Hall attributed to the defendant’s having given the
informant less than “the full amount that [the informant] was trying to purchase.”
On redirect examination, Detective Hall testified that in nearly all of the
approximately 300 drug transactions in which he had been involved, the amount of narcotics
purchased ended up as less than the amount purportedly being sold because “the people that
are selling . . . want to make additional profits.”
The defendant elected not to testify and rested his case without presenting any proof.
ANALYSIS
I. Failure to Declare Mistrial
The defendant contends that the trial court committed reversible error by not declaring
a mistrial following the bomb threat and building evacuation that took place during voir dire,
arguing that the “[j]urors . . . were clearly biased” by the experience. The State responds by
arguing, among other things, that the defendant has waived the issue by not making a
contemporaneous objection or requesting a mistrial. We agree with the State.
The record reflects that voir dire was interrupted, and the building evacuated, from
10:07 a.m. until 1:36 that afternoon. When the court reconvened, the prosecutor immediately
requested that the defendant’s bond be revoked and the case reset for the following week
with a different jury panel, stating that there had been a bomb threat, that the venire members
had appeared frightened as they were filed out of the courtroom, and that a reporter, who
somehow knew the informant’s name, had attempted to get him to discuss the case and had
announced that “he was planning to run a story on this.” Defense counsel opposed the
request, asserting that the defendant had nothing to do with the bomb threat and that the State
was “just trying to gain an advantage and force [the defendant] into making” a plea.
In denying the motion, the trial court noted that they had had “these same threats
earlier in the week” and that, “as far as concern for all our safety, we’ve all got that situation
every day” and “[t]here’s no such thing as safe.” The court did, however, grant the State’s
request for “a gag order for attorneys,” stating that it would “order that people refrain from
making any comments about” the case or what had transpired until the conclusion of the trial.
When voir dire resumed, defense counsel asked whether any of the venire members
had heard anything about the reason for the building evacuation. One member replied that
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he had heard it was “a bomb scare” and that “they were worried about some trial on the
fourth floor.” Defense counsel asked if the fact that “it apparently relate[d]” to the case at
bar affected the venire members, and one replied that it made him “uneasy” while several
others apparently nodded their heads in agreement. Defense counsel inquired whether the
venire members would hold the bomb scare against the defendant, and they indicated that
they would not. He then asked if they thought they could give the defendant a fair trial, and
one member voiced his uncertainty and fear, observing that there were “plenty” of other
venire members and stating that he would prefer not to sit on the jury. However, after a short
lecture by the trial court on the responsibilities of citizenship, that venire member affirmed
that he was willing to serve and was capable of rendering a fair and impartial verdict “[i]f it
c[ame] down to it.”
Defense counsel, thus, not only opposed the prosecutor’s motion to revoke the
defendant’s bond and continue the case to the next week with a different venire, but also
failed to raise any objections of his own to the continuation of the trial with the assembled
venire members, other than to request that the venire member who had expressed fear be
removed for cause.1 He also failed to request a mistrial, either at that time or following the
impaneling of the jury. We, therefore, agree with the State that the defendant has waived this
issue for appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.”).
II. Fair and Impartial Jury
The defendant next contends that he was deprived of his right to trial by a fair and
impartial jury due to the media coverage of the bomb threat, during which, according to the
defendant’s brief, the defendant was referred to as a “drug kingpin.” The State responds by
arguing that the defendant has waived this issue by his failure to make a contemporaneous
objection at trial and by his failure to include appropriate argument or citation to the record
in his appellate brief. We, again, agree with the State.
By not raising the alleged prejudicial media coverage as an issue at trial, the defendant
has waived consideration of the issue on appeal. See Tenn. R. App. 36(a). The defendant
also failed to include any meaningful argument on the issue or any citations to the record in
his appellate brief. A defendant who fails to make an argument on an issue or appropriate
citations to the record waives the issue on appellate review. See Tenn. R. App. P. 27(a)(7);
Tenn. Ct. Crim. App. R. 10(b). As the State points out, there is nothing in the record, aside
1
The trial court denied counsel’s request that the venire member be removed for cause. We note,
however, that the member was excused following the third round of peremptory challenges.
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from the assertions of counsel at the motion for new trial, to show that there was media
coverage of the event, that the defendant was referred to as a “drug kingpin” during that
coverage, or that any of the jurors were exposed to such information. As for this latter point,
we note that the trial court repeatedly admonished the jury not to talk to anyone about the
case, read any articles, or consult any source of information other than the evidence
introduced at trial. We further note that, despite the defendant’s claim of the jury’s having
been prejudiced against him by the alleged media coverage, he was acquitted of all but one
of the four counts of the indictment. We conclude, therefore, that the defendant is not
entitled to relief on the basis of this claim.
III. Sufficiency of the Evidence
Finally, the defendant challenges the sufficiency of the evidence in support of his
conviction, arguing that the evidence “was clear” that the transaction constituted a casual
exchange rather than the sale of a controlled substance. In considering this issue, we apply
the rule that where sufficiency of the convicting evidence is challenged, the relevant question
of the reviewing court is “whether, after viewing the evidence in the light most favorable to
the prosecution, 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, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
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Tenn. 464, 370 S.W.2d 523 (1963)).
“A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
The jury heard the testimony of the informant and the detectives with respect to the
procedures employed in the undercover transaction as well as the specific details of the
exchange, in which the informant paid the defendant $300 for what turned out to be .9 grams
of powder cocaine and .6 grams of crack cocaine. The jury also viewed the videotape of the
transaction, where the defendant is clearly visible. Although a “casual exchange” may
include a transaction in which money is involved, it contemplates a “casual exchange” of a
controlled substance that takes place “without design.” State v. Helton, 507 S.W.2d 117, 120
(Tenn. 1974). When viewed in the light most favorable to the State, a rational jury could
have reasonably concluded that the transaction constituted a sale of cocaine rather than a
casual exchange between friends. We conclude, therefore, that the evidence was sufficient
to sustain the conviction.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.
_________________________________
ALAN E. GLENN, JUDGE
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