State of Tennessee v. Jikinte Lashane Morris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
November 28, 2006 Session
STATE OF TENNESSEE v. JIKINTE LASHANE MORRIS
Appeal from the Circuit Court for Bedford County
No. 15828 Robert Crigler, Judge
No. M2005-02909-CCA-R3-CD - Filed February 26, 2007
The defendant, Jikinte Lashane Morris, was convicted of sale of a schedule II drug, fined $3,000, and
sentenced to eleven years and nine months as a Range I standard offender. On appeal, Defendant
argues that the evidence is not sufficient to support his convictions, and that the trial court abused
its discretion by denying the jury access, as part of its deliberations, to the surveillance video
introduced as evidence at trial. We conclude that the evidence is sufficient and that the trial court
did not abuse its discretion regarding the surveillance video. Thus, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA
MCGEE OGLE, JJ., joined.
Fannie J. Harris, Nashville, Tennessee, for the appellant, Jikinte Lashane Morris
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth Marney, Assistant Attorney
General; W. Michael McCown, District Attorney General; Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
In June 2005 the defendant, Jikinte Lashane Morris, was indicted by a Bedford County grand
jury on two counts of delivery and sale of 0.5 grams or more of a substance containing a cocaine
base, a Schedule II controlled substance, in violation of Tennessee Code Annotated § 39-17-417.
After a jury trial in Bedford County Circuit Court, the defendant was convicted on both counts and
sentenced to eleven years, nine months in prison as a Range I standard offender. The defendant
appeals, challenging the sufficiency of the evidence supporting his conviction and claiming that the
trial court abused its discretion by denying the jury access to the surveillance video entered into
evidence at trial. We affirm the trial court’s ruling, as we conclude that the evidence was sufficient
to support the defendant’s conviction and that the trial court did not deny the jury the opportunity
to view the surveillance video.
FACTS
In November 2004, Mark Green, a former Bedford County pharmacist whose license was
suspended in 2000 as a result of his drug use, volunteered to serve as a confidential informant with
the Seventeenth Judicial District Drug Task Force. At trial, Green testified that on December 14,
2004, while working for the Task Force, he made a telephone call to Cedrick Lyttle, who agreed to
deliver two “eight balls,” approximately seven grams of cocaine, in exchange for $300.00.
Following the call, members of the Task Force searched Green, set up audio and video surveillance
equipment1 in the kitchen of Green’s home, and advised Green to keep all transactions in front of
the camera. One of the Task Force agents, Billy Ostermann, remained at the Green house to witness
the transaction from a bedroom.
At 6:30 or 6:45 that evening, Lyttle arrived in the kitchen of Green’s house and showed him
a baggie containing crack cocaine. Based on his experience, Green testified that he knew that the
weight of the bag was not seven grams, as had been agreed upon. After haggling over price, the two
men agreed to a $220.00 sale price for the quantity of cocaine. At that point, Lyttle stated that he
could get the remaining $80.00 worth of cocaine, and he exited the house. Lyttle returned a short
time later with the defendant, Jikinte Morris, who appeared on the surveillance video at that point.
Green testified that once the defendant arrived, the defendant stated that he had seven grams
of cocaine on his person and produced a large bag of crack cocaine sealed in cellophane. After Lyttle
refused to refund the $220.00 so that Green could buy from the defendant alone, the defendant
produced a second bag of crack cocaine, returning his first bag to his pocket. The defendant then
opened the bag that Lyttle initially sold to Green and poured cocaine from Lyttle’s bag into the
defendant’s second bag. At that point, Green paid the defendant $80.00. Images of the above
actions appeared on the surveillance video.
Ostermann’s testimony at trial described the techniques used by the Task Force in planning
and recording drug buys. Regarding the events in question, he testified that he was watching a
monitor while the events unfolded. He also testified that he later viewed the surveillance video of
the events that occurred on December 14, 2004, and that the video was a true and accurate depiction
of those events.
Tim Miller, a deputy with the Lincoln County Sheriff’s Department, testified that he
monitored the transactions by audio tape across the street from Green’s house and could hear and
understand the discussion about money and the weight of the drugs, though he had no way of
viewing the events as they occurred. Miller also stated that he retrieved the plastic bag containing
the cocaine from in front of the camera once the defendant and Lyttle left, then sealed and labeled
1
This resulting video and audio recordings were introduced as evidence at trial.
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the bag before transferring the evidence to Tim Lane, director of the Task Force. Lane in turn
transmitted the bag to the TBI Crime Laboratory, whose tests confirmed that the substance was
cocaine.
For his part, the defendant did not testify at trial, nor did he offer any witnesses on his behalf.
The defendant attempted to build his case solely upon impeaching the credibility of the state’s
witnesses. For example, on cross examination Green revealed that he was a recovering cocaine
addict with prior convictions for theft and a pending conviction for theft. Green also admitted that
he was not listening to some questions asked on direct.
After the jury began deliberating, jury members made a request to view the surveillance
video. The judge noted that the video equipment and the screen used to view the surveillance video
could not be moved from the court room to the jury room. The judge then asked whether a lay
person could operate the machinery. Ostermann replied that the equipment belonged to his agency,
was rather new, and he was concerned that if a wrong button was pushed, it would be difficult to get
the equipment operating properly once again. Therefore, the judge ruled that the jury would view
the video in the courtroom, and that both he and Ostermann would remain in the courtroom to ensure
that the video equipment was being properly operated. Counsel for both parties, the defendant, and
the court reporter were also present while the jury viewed the video.2 The judge allowed the jury to
indicate which parts of the tape they wanted to watch, but he ordered them to refrain from discussing
the video until they had retired to the jury room for their deliberations. After spending several
minutes watching the video without discussing it in court, the jury returned to the jury room to
resume deliberating.
ANALYSIS
Sufficiency of Evidence
An appellate court’s standard of review when the defendant questions the sufficiency of the
evidence on appeal 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). The court does not reweigh
the evidence; rather, it presumes that the jury has resolved all conflicts in the testimony and drawn
all reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding
witness credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict
removes the presumption of innocence and replaces it with a presumption of guilt, and on appeal the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s verdict.
Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
2
The record gives a detailed account of each instance when a juror requested that a particular part of the video
be played or repeated.
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The defendant was convicted of selling a controlled substance, which required the state to
prove, beyond a reasonable doubt, that defendant knowingly delivered or sold a controlled substance.
Tenn. Code Ann. § 39-17-417(a)(2)-(3) (2003).
The defendant argues that Lyttle was the individual who negotiated the drug sale and
delivered the drugs to Green, and that the defendant was not seen in the video giving drugs to Green,
receiving money from Green, or transferring drugs from one envelope to the other. Furthermore, the
defendant contends that Green and his testimony could not have been reliable because the informant
lacked credibility. However, such contentions are without merit. First, the issue of Green’s
credibility is inappropriate for this appeal, as matters of credibility are entrusted to the jury and will
not be disturbed upon appeal. Bland, 958 S.W.2d at 659; State v. Locust, 914 S.W.2d 554, 558
(Tenn. Crim. App. 1995).
The defendant argues that he did not appear on the video giving or selling drugs to the
informant. However, Green, the informant, offered undisputed testimony that members of the Task
Force searched Green, set up the audio and video equipment, and advised the informant to keep the
drug sale in front of the video camera that was positioned in the kitchen. While Lyttle and Green
were the initial parties to the transaction, the surveillance video clearly shows that the defendant
ultimately arrived at the informant’s house with two bags of cocaine, accepted money from the
informant, and transferred cocaine from one bag to another. The video recording of these actions
and the testimony of the state witnesses, especially that of Green, constitute sufficient evidence that
the defendant committed the acts for which he was convicted, and that he possessed the requisite
knowing mental state at the time of his offenses. Any rational jury could and most likely would so
find.
Jury’s Inability to View Video in Jury Room
The Tennessee Rules of Criminal Procedure state, “Unless for good cause the court
determines otherwise, the jury shall take to the jury room for examination during deliberations all
exhibits and writings, except depositions, that have been received in evidence.” Tenn. R. Crim. P.
30.1. The Advisory Commission Comments state that such good cause for keeping an exhibit from
the jury room includes “that the exhibit may endanger the health and safety of the jurors, the exhibit
may be subjected to improper use by the jury, or a party may be unduly prejudiced by submission
of the exhibit to the jury.” Here, the judge allowed the jury to view the surveillance video in open
court, with counsel and the defendant present, because the video equipment could not be moved to
the jury room.
It would have been preferable for the judge and the officer whose agency owned the
equipment to instruct the jury as to how to use the equipment and then excuse themselves from the
courtroom. The judge, after considering both the state’s and the defendant’s position found that this
course of action was not appropriate. This court notes that the trial judge’s refusal to let the jury
attempt to operate the equipment before proceeding as it did was not a wise decision and should be
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avoided by trial courts in the future. Still, there is no proof to indicate that the defendant was
prejudiced by the judge’s ruling regarding the surveillance video. The jury was permitted to view
the video and had unfettered discretion as to which parts of the video it wanted to view and how
often it wanted to view these parts. Furthermore, the judge’s ruling that the jury could not discuss
the video while watching it helped maintain the secrecy of jury deliberations. The judge’s actions
did not violate Rule 30.1 and thus do not constitute an abuse of discretion on the trial court’s part.
CONCLUSION
The defendant’s appearance on the video selling cocaine to the informant and transferring
the drugs from one bag to another, coupled with the informant’s testimony at trial, constitutes
sufficient evidence to support a conviction for sale of a controlled substance. And while the jury
was, for logistical reasons, unable to view the surveillance video in the jury room, the jury was able
to view the video in the courtroom and then discuss the video privately in the jury room. Therefore,
the defendant was not prejudiced by the jury’s failure to view the tape in the jury room. The
judgment of the trial court is affirmed.
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D. KELLY THOMAS, JR., JUDGE
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