State of Tennessee v. Benjamin Gunn

10/26/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 7, 2017
STATE OF TENNESSEE v. BENJAMIN GUNN
Appeal from the Criminal Court for Shelby County
No. 09-02072 W. Mark Ward, Judge
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No. W2016-00338-CCA-R3-CD
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Defendant, Benjamin Gunn, was convicted of unlawful possession of cocaine with
intent to sell, unlawful possession of cocaine with intent to deliver, and third offense
unlawful possession of marijuana. The trial court merged the two cocaine convictions
and imposed a sentence of twelve years. Defendant was sentenced to two years for
possession of marijuana to be served consecutively to the possession of cocaine
conviction for an effective fourteen-year sentence. On appeal, Defendant raises the
following issues: (1) whether the evidence was sufficient to support his convictions for
unlawful possession of cocaine with intent to sell and unlawful possession of cocaine
with intent to deliver; (2) whether the trial court erred by allowing testimony concerning
prior search warrants; (3) whether Defendant was properly sentenced for third offense
possession of marijuana; (4) whether the trial court erred by allowing the State’s expert
witness to testify concerning the characteristics of a drug dealer; (5) whether the State
committed prosecutorial misconduct; (6) whether the trial court improperly commented
on the legality of the search warrant; and (7) cumulative error. After a thorough review
of the record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.
Gregory D. Allen, Memphis, Tennessee, for the appellant, Benjamin Gunn.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Amy P. Weirich, District Attorney General; and Meghan Taylor, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural Background
In his first trial concerning these charges, Defendant was convicted of possession
of more than .5 grams of cocaine with intent to sell, possession of more than .5 grams of
cocaine with intent to deliver, and felony possession of marijuana. This court reversed
the judgments of the trial court on appeal and remanded the case for a new trial because
the trial court erroneously allowed into evidence prior searches of Defendant’s residence
by law enforcement officers. State v. Benjamin Gunn, No. 2013-0206-CCA-R3-CD
2015, WL 847431 (Tenn. Crim. App. Jan. 30, 2015).
Background
Officer Kittrel Robinson of the Memphis Police Department testified that in 2007-
2008 he was assigned to the Organized Crime Unit, Narcotics Division. He said: “Our
assignments over there were to infiltrate, get information on drug houses, drug rings, any
type of organized crime, that was our job to pretty much infiltrate, get information and
then bring those people to justice.” Officer Robinson said that in 2008 he was assigned
to “Team 7” whose responsibility it was to target “street level” drug sales in Shelby
County. He explained that street level drugs sales “are basically person A, person B
selling drugs out of a house[.]”
Officer Robinson testified that on February 29, 2008, he and Team 7 executed a
search warrant at Defendant’s residence located at 1432 May Street. Officer Robinson
had been to the residence within five days prior to the search warrant. Concerning the
“traffic” going in and out of Defendant’s residence, Officer Robinson testified:
This is a neighborhood that’s the way it is designed is that houses are set
up on the east side of the street, so the west side of the street it’s no, it’s
no houses on that side. It’s kind of like a what you call a bayou or ditch
or kind of sitting like that, so it’s only houses on one side.
From my surveillance and day-to-day activity over there most of the
houses are older people. And that that meant for me as a narcotics
officer is older people don’t usually have a lot of traffic coming in and
out the house, they kind of lock up, 6:00 they’re in, door locked, lights
off.
This particular house that I received the information on that I was
collaborating [sic] was the total opposite. Lights on, people in and out of
the house all day. Gentlemen would pull up in the driveway, meet the
gentleman known to me to be [Defendant] in the driveway, talk maybe
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thirty seconds, go inside stay thirty seconds to a minute, come back out,
get in the car and leave. And from my trained experience that’s known
to me to be hand-to-hand drug transactions from his house.
Officer Robinson testified that Team 7 consisted of 11 officers both male and
female, and they took six unmarked patrol cars and two marked patrol cars to execute the
search warrant at Defendant’s residence. Officer Robinson testified that each officer had
various assignments for entering Defendant’s house and executing the search. Officer
Robinson was assigned to be the “shield man.” This meant that he would be one of the
first officers to the door, and he carried a big Plexiglas shield, and the other officers lined
up behind him. Officer Robinson testified that they approached the door to Defendant’s
residence, knocked on it, and announced “Memphis Police” and “search warrant.” He
noted that the “storm door” to the residence was locked, and the inner wooden door was
open. Even though there were bars on the storm door, Officer Robinson could see
directly inside the residence, and he saw Defendant jump up from the couch. He said:
After he jumped up he looked at us at the door and then he started to
proceed to come out of the living room and run. So I then yelled to my
team, since we [were] so close, runner, runner, so that’s where the ram
man then comes up and he hits the ram with the pick. So basically it
pushes into the groove of a door and now all he has to do was push and
we get leverage and the door pops open.
Once they were inside the house, Officer Robinson saw Defendant run and throw
what appeared to be cocaine out of a clear bag. Officer Robinson pursued Defendant to
the back of the house, and Defendant dove onto a bed in one of the bedrooms. He said:
So now I’m throwing the shield as he’s diving to catch him while he’s on
the bed because now is my only chance because he’s going on the bed
but he’s going toward the edge where the bed pushes up to the wall. So
then I kind of dive on top of him and that’s when he was trying to get
what we retrieved from him was a bag of cocaine then.
Defendant was then handcuffed and taken into the living room to sit down. Officer
Robinson testified that because he was the case officer, he was also the custodian of any
evidence taken from Defendant’s residence. Concerning drugs found in the house,
Officer Robinson testified:
We were able to backtrack and pick up the crumb that led right back to
the bedroom and the crack - - well, the powder cocaine was retrieved
from his right hand, so it was right there toward the edge of the bed
where he was trying to get rid of that. And I remember another officer
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calling my name saying that he found something on the living room
table.
Officer Robinson testified that marijuana was found on the table. He noted that
the crack cocaine was wrapped in aluminum foil. Officer Robinson testified that the
drugs found at the scene were field-tested and later taken to the property room where they
were tested and weighed by the custodian of the property room. Officer Robinson
testified that he personally observed the testing. He said: “So we have positive for crack
cocaine weighing 8.7 grams. Positive for cocaine weighing 1.8 grams. Positive for
marijuana weighing 8.5 grams. . .”
Officer Robinson was asked by the State if there had been anyone else at the
residence on May Street when the search warrant was executed. The following exchange
took place between Officer Robinson and the prosecutor:
A. You know what, I want to say it was but I remember more of
[Defendant] because that’s who my search warrant was on, that was
my target. So it could have been, so other officers could of [sic]
completed that arrest ticket, something like that. If I can reflect back
to the case that would help me out on the arrest ticket or anything like
that.
Q. Well, I’m happy to pass back the arrest ticket. Would it - - you said
the - - would the case report help refresh your recollection?
A. Yes. Ma’am.
Q. Now you had said that you more remember [Defendant], why is that,
what is that you remember [Defendant]?
A. This is not our first encounter on a - -
Q. And I’m just going to stop you right there.
A. Okay.
Q. If I ask you if Forrest Jones was on the scene that day would that
sound familiar to you?
A. Yes, ma’am.
Q. And what about Kimberly Clark?
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A. Yes, ma’am.
Q. If Forrest Jones was given a citation would that sound right to you?
A. Yes, ma’am.
Officer Robinson testified that the police report indicated that Mr. Jones was located in
the kitchen, and he had a small package of aluminum foil with one rock of crack cocaine,
and there was a crack pipe in his front left pocket. Mr. Jones was issued a citation.
Officer Robinson said that to his knowledge, neither Mr. Jones nor Ms. Clark lived at the
residence. Defendant lived there.
Defendant, acting pro se, questioned Officer Robinson on cross-examination.
Officer Robinson testified that he worked with a confidential informant in Defendant’s
case but he did not bring the informant to trial. He agreed that confidential informants
give tips on “drug buys and stuff,” and the confidential informant in Defendant’s case
gave Officer Robinson a tip about Defendant. Officer Robinson testified that he had
received the tip from the informant within five days of executing the search warrant. He
made sure that all of the information from the informant was verified before the search
warrant was executed. Defendant asked Officer Robinson several detailed questions
about how and when the search warrant was obtained. The trial court intervened and
said, “I’ve already ruled the warrant, the warrant that was actually involved in this case I
have ruled was legal. So your questions about this warrant are over with. Move on to
another topic.” Officer Robinson testified that he did not have any audio or video of drug
transactions at Defendant’s house.
Defendant asked Officer Robinson if he did a criminal background check on
Defendant. The following exchange then took place:
Q. Don’t have the witness, don’t have the audio and video. You did a
background check on [Defendant]; right?
A. Uh-huh
Q. Okay. What did you find out about [Defendant] in the background
check?
[PROSECUTOR]: Judge, may we approach?
THE COURT: Sure.
* * *
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[PROSECUTOR]: I’m happy for him to answer that question.
THE COURT: All right, go ahead.
[PROSECUTOR]: Okay.
THE COURT: He can go ahead and ask him. You can ask him the
question.
[PROSECUTOR]: I don’t think he wants him to.
* * *
Q. (BY [DEFENDANT]) What did you find out in your background
check on [Defendant]?
A. That we have previously did [sic] a search warrant at your house,
[Defendant]. Your ties to the house as far as you being there and me
seeing you come in and out of the location with a key, being there at
different times of the day.
On redirect examination, the following exchange took place between Officer
Robinson and the prosecutor:
Q. So you got a tip from [a] confidential informant and instead of
acting on that tip you went and double checked it?
A. Yes, ma’am.
Q. And you said in your testimony you had actually executed a search
warrant at [Defendant’s] house before?
A. Yes, ma’am.
Q. So, so this wasn’t the first time you had gotten such a tip?
A. No, ma’am, it a - - no, he wasn’t new to me and the operation
wasn’t new to me also. I just like to verify the information that I’m
given.
On recross-examination, Defendant asked Officer Robinson additional questions
about a previous search warrant:
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Q. You said that you were, you were familiar with [Defendant]?
A. Yes, sir.
Q. Through a previous case?
A. Yes, sir.
Q. On that previous case did you have a search warrant then?
A. Yes, sir.
Q. Was [Defendant] named on the search warrant?
A. No, sir.
Q. So your information, your previous involvement really didn’t
involve [Defendant], did it?
A. Yes, sir, it did.
Q. It did?
A. Yes, sir. On the previous search warrant at your house, if I can
remember right, when we came into the house you then had hands on
drugs at that time also.
Officer Star Handley of the Memphis Police Department testified that in 2007-
2008, he was assigned to the “Organized Crime Unit Drug Response Team 7” of the
police department. Officer Handley participated in the execution of the search warrant at
Defendant’s residence on February 29, 2008. He said, “I was a member of the raid/entry
team and my job was the breacher of the door, also know[n] as the ram man.” Officer
Handley testified that he was the last officer to enter the residence; therefore, he did not
see Defendant until Defendant was handcuffed and brought from another part of the
residence. Officer Handley participated in the search and located a bag of marijuana on a
table in the living room. He was present when the marijuana was field tested, which
tested positive for THC, and he said that it weighed a total of 8.5 grams.
On cross-examination, Officer Handley testified that he remembered Defendant
and a female being present in the house at the time of the search. He did not recall if
Forrest Jones was also there.
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Officer Michael Gibbs of the Memphis Police Department was recognized by the
trial court as an expert in the field of street-level drug sales in Memphis due to his work
as a “deep undercover” agent for two and a half years “both buying and selling on the
streets of Memphis[.]” Defendant stipulated to Officer Gibbs being declared an expert.
Officer Gibbs viewed the drugs at trial that were seized from Defendant’s house,
and he said: “One hundred percent that they are packaged to sell.” He further explained:
Because, as I said before, the quantity by themselves, I mean, there are
drugs users don’t carry this amount of drugs on them. They are buying
the drugs to use immediately. They don’t - - as drugs users and if they’d
been caught with a million rocks on them and they don’t use - - they’re
trying to chase a high that they can’t - - that they achieved the first time
they can’t reach again. So they are always constantly - - it’s like an itch
that you can’t scratch. They’re always smoking, smoking.
This is no way that a normal user would possess this much because they
are in the habit of just smoking it up. They don’t save and invest and say
I’m going to save and open a saving account and I’m going to go get a
little bit of crack here and there.
Officer Gibbs also noted that only a seller of crack cocaine would have the quantity of
rocks that were found in Defendant’s possession. When asked what “packaged for
resale” meant, Officer Gibbs testified:
It means that they’re in - - they’re individually wrapped. Each one of
these if, say a user, if I’m going - - I’m going to buy dope, I’m not going
to buy, I’m going to get what I can afford at that time.
And sellers are different. If I’m a seller and I’m going to buy dope, I
don’t want all of these individually wrapped because that adds weight on
to my total. I’m going there to purchase a certain amount of drugs that
weigh that so much. And trust me, sellers are very accurate on their
weight. If they’re - - this aluminum foil wrapped around each piece adds
weight on to those pieces which mean that I’m buying foil, not drugs.
As a seller that’s no good to me.
If I’m selling each one of these pieces, which are relatively large pieces
at that, then I make more money. I can buy this amount in one solid
piece and break it up and make twice, the three, four times as much as I
would of made or as I would of made selling it as one rock.
-8-
Officer Gibbs estimated that there were “[a]nywhere between forty and fifty
rocks” of crack cocaine, including the “crumbs,” in the package recovered from
Defendant’s residence. He weighed a couple of the rocks of crack cocaine in front of the
jury and testified as to the street value of the cocaine recovered from Defendant’s
residence. He testified that Defendant could have made “like three thousand dollars off
of it.” Officer Gibbs noted that because Defendant had powder cocaine, crack cocaine,
and marijuana in his house that Defendant was probably “selling to different people,
different clientele.” He said, “Somebody might come to his location to buy weed.
Somebody might come to his location to buy powder. Somebody might be coming to
buy crack.”
Concerning the appearance of crack cocaine users and drug dealers, Officer Gibbs
testified:
You would see they - - the pipes get really hot. You’d see what we call
the ring from the glass or metal pipe. You can’t smoke it in plastic
because you can’t get it hot enough, well the plastic starts to melt so
that’s why they use glass pipes and or metal pipes. They put Chore Boy
in the end of it and they smoke and get a burn sometimes on their
fingers, severe burns on their fingers and they get a, if their lips touch the
pipe, they’ll get a U shape.
Crack users also it, as I say, it looks as if their losing like weight. Those
guys who are addicted to crack they start to change physical
appearances. You start to look like you’re getting older and you could
be, you know, a younger guy. It takes, it takes away your youth. It takes
away your vitality.
* * *
Drug dealers, I mean, they come in all shapes and sizes. We’ve had an
older lady who could have been my grandmother selling this stuff. But
they tend to be normal looking people. Healthier people. They don’t
have the char - - they don’t have, like I said, the crack, the burnt lips, the
fingers from where they’ve been holding the pipes. So they more blend
in with us or people who aren’t on or addicted to crack.
When asked if Defendant displayed any of the characteristics of a crack cocaine user,
Officer Gibbs replied: “He looks healthy to me.” The State again asked Officer Gibbs
about the drugs found in Defendant house, and Officer Gibbs testified: “This is packaged
to sell. This is not a user. This many rocks and as big as it, this is a seller.” He further
said: “I know one hundred percent [Defendant is] selling dope.”
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Special Agent Shalandus Garrett is a forensic scientist with the Tennessee Bureau
of Investigation (TBI) Crime Lab in Memphis. She tested the drugs in the present case.
The clear plastic bag of powder tested positive for cocaine and weighed 1.34 grams. She
tested one of the rocks which also tested positive for cocaine base and weighed 0.15
grams. A second rock tested positive for cocaine base and weighed 0.24 grams. Special
Agent Garrett testified that the remaining individually wrapped rocks of cocaine were not
tested and that their gross weight was 9.16 grams. She noted that the rocks appeared to
be cocaine base and were consistent with the rocks that she tested. Special Agent Garrett
testified that she tested the plant material, and it was positive for marijuana. The weight
of the plant material was 7.12 grams.
Defendant testified that he remembered there being six people, including himself,
at his house when the search warrant was executed. He said that two people received
citations, and three people, including himself, were handcuffed. Defendant testified that
Kimberly Clark and “Mr. Forrest” were supposed to receive citations, and “the young
guy Big Dude they let him go.” Defendant did not call any of the individuals to testify at
trial because two of them had died, and other people had moved away. Concerning the
storm door at his house, Defendant testified:
Well, my storm door had dark tint, you couldn’t see in. And it didn’t
have the bars that they claim that I had there. And I have pictures of my
door, of my storm door and I would like to show it. But I tried to show it
at the las - - oh, I’m sorry, I can’t bring that up, one up. I’d like to show
the picture to the jury, if I might, about the storm door.
On cross-examination, Defendant admitted that the picture of his door showed
“partial bars.” He also noted that there was newspaper in the top part of the door.
Defendant testified that the picture of his door was taken after the search warrant had
been executed. However, he said that the door looked the same in the picture as it did on
February 29, 2008. Defendant admitted that the marijuana belonged to him but he said
that he did not have a bag of powder cocaine in his hand. He did not know where the
crack cocaine was found. Defendant testified that he did not see members of the
Memphis Police Department come into the house because he was in the bedroom lying
down at the time. He also denied throwing any rocks of cocaine, and he never saw a
copy of the search warrant. Defendant said that he had been smoking marijuana before
police arrived.
Defendant testified that there were people at his house “constantly” and that he
entertained them by partying. He said: “Well, people will be sitting around sometime
and we would drink coffee and sometimes we would drink a little alcohol. Sometimes
we would smoke marijuana.” Defendant testified that people had smoked crack at his
house, and he said that he had not smoked crack since 1985. He admitted that he had
possessed crack cocaine since 1985 because he purchased it for someone else. Defendant
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did not know why cocaine was in his house on February 29, 2008. The State then asked
to approach the bench, and a conference was held out of the hearing of the jury. The
prosecutor told the trial court: “I think he’s pretty much kicked the door wide open for
me to talk about some of the other incidents.” The jury was sent out, and the following
exchange took place:
[PROSECUTOR]: Judge, I want to talk about the August 1st and the
August 19 incidents where [Defendant] was found with crack cocaine.
He said he hasn’t had it since 1985. And he was found on two separate
occasions and I would like to ask him about it.
THE COURT: And the day of this incident, remind me.
[PROSECUTOR]: It was February 29, 2008.
THE COURT: And these happened August 1st.
[PROSECUTOR]: August 1st and August 19th of 2007, in the same
house, on the same street.
THE COURT: She wants to ask you about that, what’s your take on
that, [Defendant]?
[DEFENDANT]: She asked me had I smoked crack.
THE COURT: No, what - - she’s wanting to introduce those, talk to
you about those matters in front of the jury, is that okay with you or do
you object to her?
[DEFENDANT]: I object to it. But I want to say this, though, your
Honor, she asked me had I smoked - - the last time I smoked and I said
1985. That’s what she asked me.
THE COURT: All right. Well, here’s - - I’m going to let her ask. I
think the door had been opened about this for multiple reasons. One
thing, during the testimony of a prior witness, let’s see, that was Kittrel
Robinson, during the testimony of Kittrel Robinson, Mr. Jones (sic), you
asked and elicited that he had previously done a search warrant at your
house. And you also elicited from him that in a previous case you had
drugs in your hands. All of which if you’d of had a lawyer may not of
ever gotten in but you weren’t smart enough to keep that part out. So
you’ve already opened the door and now you claim that you - -
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[DEFENDANT]: May I say something about that, your Honor?
THE COURT: No, not until I’m finished making my ruling and then
I’ll let you talk. But then here on cross-examination by the State, she’s
now claiming in addition to that that you’ve opened the door by your
claims with regard to not having any cocaine in your possession for a
number of years. And then you generally denied that you had any
knowledge that this cocaine was in your house. You don’t contest that
cocaine was in your house?
[DEFENDANT]: No, sir, I never - -
THE COURT: But you’re just claiming it’s none of mine. I don’t - -
[DEFENDANT]: It’s not mine.
THE COURT: I don’t have any kno - - I wasn’t in on it. I don’t
have any guilty knowledge of it. You didn’t even know it was there, did
you?
[DEFENDANT]: Well, I probably knew it was there so.
THE COURT: Okay. Well then she’ll ask you that when the jury
comes back. But are you going to ask me to introduce 404(b) proof of
this? Or just want to ask him about it?
[PROSECUTOR]: I just want to ask him about it.
THE COURT: Well what - - of, go ahead.
[PROSECUTOR]: I just want to ask him about it right now, judge.
THE COURT: Go ahead.
[PROSECUTOR]: After he’s done testifying I may speak with Detective
Robinson and put in the 404(b) proof. But right now I just want to ask
him about it.
THE COURT: Well unless I know - - I believe he’s opened the door
but I also want to in my mind feel confident that if you wanted to put
proof of substantively about this that it would qualify under 404(b).
Now looking at this objectively under 404(b) we’re talking about the
evidence that within, what, six months, how many months was it?
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[PROSECUTOR]: August to February, so roughly six months.
THE COURT: About six months. Within six months twice this
house, which I think based upon your expert’s testimony could pretty
much be described as, what, a trap house?
[PROSECUTOR]: A trap house, yes.
THE COURT: You know, within months [Defendant] is physically
present when they have all this cocaine around. And in one of the
incidents he’s flushing the cocaine down the toilet which, and by the
way, he’s been convicted of that. So talking about clear and convincing
evidence.
[PROSECUTOR]: Judge, he’s been convicted of the August 17th matter
too, he plead guilty.
THE COURT: So he’s been actually convicted of the August 1st and
the August 17th, so that’s clear and convincing evidence.
[PROSECUTOR]: He actually plead guilty to possession of cocaine
which is direct, directly controverts what he’s testified to today.
THE COURT: Yeah. Well, so, again, does - - is this relevant to
something other than propensity and of course I think it would be
relevant evidence as to his intent. I think it’s relevant to his guilty
knowledge. I think it’s relative to his knowledge intent. I mean you
can’t operate a trap house and then say all this stuff, I had no clue that
these drugs are in my house. And so I think it relates to all of that.
I think this is significantly different than when this case previously went
to the Court of Criminal Appeals because I - - for two reasons. I have
not ruled prior to his testimony that this stuff comes in under 404(b). I
gave him a chance to raise all of these issues in his testimony.
It’s also significantly different because in the direct examinat[ion] - - I
mean his cross-examination he opened [the door] to some of this stuff.
So when you weigh probative value versus prejudicial effect, the jury
kind of knows about this prior incident already, so that comes into play.
So I think looking at this under 404(b) that before I would allow any
substantive evidence of this I would have to have a jury-out hearing, I’d
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have to find the evidence relevant to [a] material issue other than
propensity and I’ve stated that those material issues are that I find
evidence other than propensity. Must exclude evidence if the probative
value is outweighed by the danger of unfair prejudice. And I have to
find clear and convincing evidence.
I heard this proof in the prior trial and found clear and convincing
evidence. He’s since been convicted of both of these incidents which
makes it clear and convincing evidence. And I only exclude the
evidence if its probative value is outweighed by the danger of unfair
prejudice. And since he’s opened the door to this and now has put his
intent and knowledge and all this stuff in issue for the first time, I think
that substantive evidence under 404(b) would be admissible and that this
is distinctly different from what procedurally [ ] went up to the Court of
Criminal Appeals before.
I will say this, that in the prior opinion of the Court of Criminal Appeals
they quoted me in reversing me but didn’t quote my entire paragraph. I
said in with regard to intent that normally you don’t just let in intent
unless there’s some prior similar connection. And I think that the same
house here is involved in a relatively short period of time. This is sort of
like the - - so I find connectedness here that makes this different from the
normal case.
In the prior opinion in the Court of Criminal Appeals didn’t think much
of my connectedness analysis but this is somewhat like in the domestic
violence incident. Prior crimes of acts of violence against the same
victim are admissible sometimes under 404(b), when if they were
different victims it wouldn’t .
So this is the same house. It’s the same deal, so. With it being in this
procedural different context with him having elicited this himself in part
of his proof and with me not ruling prior to his testimony that this comes
in but letting him put all these issues that I find it relevant an issue, first.
I think that you could under 404(b) introduce this stuff.
So I’m not saying you’re making that decision but before I allow cross-
examination on any of this I just wanted to be sure in my mind that the
substantive proof to back it up but [sic] also it be available. So I’m
going to let you question him about - -
* * *
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- - those in the presence of the jury. We’ll bring the jury back in.
The State resumed questioning, and Defendant reiterated that he had not smoked
crack cocaine since 1985. He said that he had purchased crack cocaine for others and
gave it to them if they “gave me the money.” Defendant said that he did not keep the
crack cocaine in his house. He also said that cocaine might be found in his house “if
somebody brought it in.” Defendant testified that he had a lot of friends who came to his
house. He said that some of them “probably” smoked crack cocaine.
Defendant testified that a search warrant was executed at his house on August 1,
2007. He and Furnell Smith were there at the time. Defendant denied that police saw
him with a “golf ball size” rock of crack cocaine. He admitted to being found guilty of
tampering with the rock of crack cocaine but denied that he was trying to flush down the
toilet when police came inside the house. Defendant did not know if his attorney
conceded to that fact at trial. Defendant also recalled that the police came to his house
again on August 19, 2007, to do a “knock and talk.” He was unaware the police found
rocks of crack cocaine concealed in a “false bottom can” in his bedroom or “rocking
tubes,” which are used in making crack cocaine. Defendant testified that the officers
found marijuana on the front porch, and they “stepped on it.” Defendant testified that
he was unaware that officers found a crack pipe under his bed on February 29, 2008.
However, he admitted that in his previous testimony in May 2013, he said that the officer
made a “deal” about Defendant having a crack pipe underneath the bed where he was
laying. Defendant again stated that he did not smoke crack cocaine, sell crack cocaine, or
sell powder cocaine. He said that he smoked marijuana and sometimes he gave it away.
Defendant testified that he was not the only person living at 1432 May Street and
that he let people come in and out of the residence. He said that people sometimes came
there to “party.” Defendant agreed that he pled guilty in September 2007 to simple
possession of cocaine on August 19, 2007. Concerning his reason for pleading guilty,
Defendant testified:
They arrested two other people. They arrested my girlfriend and another
guy and they were in jail with me for a long time and they made me a
deal. Mr. Mitchell was my attorney and they made me a deal that if I
plead to it they would let them go and I would only be in jail for about
forty-five days. And they gave me thirty-nine days credit and that means
I would only be in jail six more days. And I would also let the other two
people go. And I plead to it just to let them out of jail.
On cross-examination, Defendant testified that he never saw the cocaine that was
found by police during the search of his residence on February 29, 2008. He also said
that the officers never showed the search warrant to him until he was released from jail.
Defendant testified that he never knew that the cocaine was in his house.
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Analysis
I. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to support his convictions for
possession of more than .5 grams of cocaine with intent to sell and possession of more
than .5 grams of cocaine with intent to deliver. He does not challenge his conviction for
unlawful possession of marijuana and concedes that he had possession of the drug.
The standard for appellate review of a claim challenging the sufficiency of the
State’s evidence 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 Tenn. R.
App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a
claim of insufficient evidence, appellant must demonstrate that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson, 443 U.S. at 319. This standard of review is identical whether the conviction is
predicated on direct or circumstantial evidence, or a combination of both. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).
On appellate review, “‘we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury’s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
To sustain a conviction for possession with intent to sell or deliver 0.5 grams or
more of cocaine the State must prove beyond a reasonable doubt that appellant
knowingly “[p]ossess[ed] a controlled substance with intent to manufacture, deliver or
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sell the controlled substance.” Tenn. Code Ann. § 39-17-417(a)(4). In that regard,
possession of cocaine “is a Class B felony if the amount involved is point five (.5) grams
or more.” Tenn. Code Ann. § 39-17-417(c)(1). Possession of a controlled substance may
be actual or constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). A person
constructively possesses a drug when the person has both the power and intention to
exercise dominion and control over the drugs either directly or indirectly through others.
See State v. Patterson, 966 S.W.2d 435, 444-45 (Tenn. Crim. App. 1997). “One’s mere
presence in an area where drugs are discovered, or one’s mere association with a person
who is in possession of drugs, is not alone sufficient to support a finding of constructive
possession.” Shaw, 37 S.W.3d at 903. “Proof that a possession is knowing will usually
depend on inference and circumstantial evidence.” State v. Brown, 915 S.W.2d 3, 7
(Tenn. Crim. App. 1995) (internal citations omitted) (citing United. States v. Pierre, 932
F.2d 377, 392 (5th Cir. 1991)).
Viewing the evidence in a light most favorable to the State, the proof shows that a
search warrant was executed at Defendant’s residence on February 29, 2008. Officer
Robinson testified that when he and other officers approached the residence, he could see
into the house through the storm door. When the officers knocked on the door and
announced their presence, Officer Robinson saw Defendant jump up from the couch.
Once inside the residence, Officer Robinson saw Defendant running out of the living
room and throwing what appeared to be crack cocaine rocks out of a clear bag that was in
his hand. He pursued Defendant to a bedroom, and Defendant dove onto a bed.
Defendant was “going toward the edge where the bed pushes up to the wall.” Officer
Robinson dove on top of Defendant and retrieved a bag of powder cocaine from
Defendant’s right hand. The drugs were later tested and were positive for cocaine. There
were 8.7 grams of crack cocaine and 1.8 grams of powder cocaine recovered from the
residence. The rocks of crack cocaine were individually wrapped in aluminum foil.
Officer Michael Gibbs was recognized as an expert in the field of street-level drug sales
in Memphis. He testified that the drugs seized from Defendant’s house were “[o]ne
hundred percent . . . packaged to sell.” The quantity was also greater than what a typical
drug user would carry. Concerning the drugs, Officer Gibbs specifically stated: “This is
not a user. This many rocks and as big as it is, this is a seller.” He further said, “I know
one hundred percent [Defendant is] selling dope.”
We conclude that the evidence is sufficient to support Defendant’s convictions for
possession of more than .5 grams of cocaine with intent to sell and possession of more
than .5 grams of cocaine with intent to deliver. Defendant is not entitled to relief on this
issue.
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II. Testimony Concerning Prior Search Warrants
Defendant contends that the “trial court committed reversible error, and directly
ran afoul with this Court’s order on direct appeal [from a prior trial], when it allowed
testimony regarding prior search warrants in the State’s case-in-chief.”
On direct appeal from Defendant’s first trial in this matter, this Court reversed
Defendant’s convictions and remanded the case for a new trial. In particular, this Court
held:
Here, the trial court ruled that evidence of the August 1 and 19 searches
was admissible prior to the presentation of any proof based primarily on
Defendant’s unwillingness to stipulate an element of the offense. As
alluded to above, until a material issue is created by the evidence
presented at trial, evidence of prior bad acts is generally not admissible.
We note that the State’s first witness at trial, Detective Robinson, first
testified about the details of the August 1, 2007 search prior to providing
any details of the search on February 29, 2008, which led to the charges
for which Defendant was on trial. At this juncture of the trial, no
“material issue” as contemplated by 404(b) existed.
Furthermore, the evidence of the prior searches of Defendant’s home
fails part 4 of the 404(b) test. Under the circumstances in this case, we
believe that the probative value of the evidence is outweighed by its
unfair prejudicial effect, primarily because the offenses are so closely
related. During the 404(b) hearing, the State, arguing in favor of the
probative value of the evidence, stated that the prior searches and the
search leading to Defendant’s charges in this case were “glaringly
similar.” We believe that because evidence of the prior searches was
presented first by the State at trial, Defendant was unfairly prejudiced.
We have come to the conclusion, therefore, that evidence of the prior
searches is not admissible on retrial unless the trial court determines, at
the conclusion of any proof presented by Defendant (and not pre-trial),
that the State can meet its heavy burden in this case showing that the
probative value of evidence of the prior searches is not outweighed by
the danger of unfair prejudice.
We further conclude that the trial court’s pre-trial ruling which granted
the State’s request to be allowed to make a preemptive strike against
Defendant with evidence of prior bad acts likely forced Defendant to
testify. A defendant in some circumstances by testimony can open a
door to allow prior crimes evidence that otherwise would be
inadmissible. However, a defendant never opens that door based on
- 18 -
proof he or she offered in a prior trial, or by refusing to stipulate proof
establishing beyond a reasonable doubt an element of the crime charged.
Therefore, we conclude that the trial court abused its discretion by
allowing evidence of the prior searches of Defendant’s residence.
Moreover, we conclude that the error was not harmless and more
probably than not affected the outcome of the trial. See Tenn. R. App. P.
36(b); State v. Luellen, 867 S.W.2d 736, 741 (Tenn. Crim. App. 1992).
Accordingly, the judgments of the trial court are reversed, and this case
is remanded for a new trial.
State v. Benjamin Gunn, No. W2013-02006-CCA-R3-CD, 2015 WL 847431, at *4-5
(Tenn. Crim. App. Jan. 30, 2015).
In his brief, Defendant complains of the following instances, during the State’s
case-in-chief, in which prior searches at Defendant’s house were mentioned. We quote
directly from Defendant’s appellate brief:
1. The first instance occurred on direct examination, prior to any
defense cross-examination of any witness. The prosecutor asked
“you had said that you more remember [Defendant], why is that, why
is [it] that you remember [Defendant]?” (Vol. V, p. 174, lines 12-
13). Defendant submits that given this case’s history, the Court
should have issued a curative instruction and warned the prosecutor
to stay away from this line of questioning. No such instruction or
warning was issued.
2. The second instance occurred during cross-examination of Detective
Robinson and upon questioning by the Appellant. Appellant submits
that despite asking the question regarding [Defendant’s] own
background, the Court failed to conduct the proper 404(b) hearing
and the State failed to address the trial court regarding this Court’s
explicitly clear and obvious ruling. (Vol. V, pp. 187-89). Appellant
submits that questioning Detective Robinson regarding Appellant’s
“background” does not open the door to allowing testimony of prior
search warrants that served as a basis for reversal. Previously, this
Court stated that prior to introduction of this evidence, the State must
show that it “can meet its heavy burden in this case showing that the
probative value of evidence of the prior searches is not outweighed
by the danger of unfair prejudice.” (Vo. 1, p. 9). Even assuming
arguendo, that the door was opened, the State and trial court were
still bound to establish that the State could introduce this evidence
and overcome the heavy burden of the fourth portion of 404(b). No
- 19 -
such hearing was conducted outside the jury. The State presented
zero evidence regarding the probative value as it relates to the danger
of unfair prejudice. The State simply disregarded this Court’s ruling,
tainted the trial, and thus must suffer the consequences on remand.
3. On redirect examination of Detective Robinson, and still prior to any
404(b) hearing, or proof regarding the probative value as opposed to
propensity, the State began questioning regarding the previous search
warrants. (Vol. V, pp. 193-94). The State asked Detective Robinson
about a prior search warrant at Appellant’s home.
“Q – So, so this wasn’t the first time you had gotten such a tip? A –
No, Ma’am, it a – no, he wasn’t new to me to and the operation
wasn’t new to me also. I just like to verify the information I’m
given.” Id. Again, the State could have avoided this area on redirect.
However, it proceeded forward, without regard to this Court’s ruling
and directly solicited testimony of the prior search warrant.
4. The State finally requested the trial court addressed [sic] this Court’s
ruling after Appellant testified. (Vol. V, pp. 285-93)(emphasis
added). Appellant submits that at this point reversible damage
existed due to the State’s questioning regarding the prior search
warrants. The State sought to introduce evidence of the prior search
warrants because Appellant denied having cocaine in his possession.
However, the State had already solicited this testimony during its
case in chief. The trial court acknowledged the jury “kind of knows
about this prior incident already.” (Vol. V, p. 290, Lines 21-23). The
trial court addressed 404(b) and stated that “since he’s opened the
door to this and now put his intent and knowledge and all this stuff in
issue for the first time” that the evidence would be admissible under
404(b). (Vol. V, p. 291, lines 13-16). Appellant strongly disagrees
and submits the trial court’s ruling is too little, too late. The evidence
was allowed in previously and no ruling was mentioned.
5. On cross-examination of Appellant, the State questioned Appellant
regarding the prior search warrants at his home. (Vol. V, p. 297-98;
Vol. VI, pp. 307, 309-10, 312, 315). The State asked Appellant if
officers came to his house on August 1, 2007. (Vol. VI, p. 307). On
this occasion, the prosecutor elicited testimony regarding “a golf ball
size rock of crack.” (Vol. VI, p. 307). The State blundered on, next
questioning Appellant about an August 19, 2007, incident. (Vol. VI,
p. 309-10). The State brought up further questioning regarding
Appellant’s previous trial, stating that “actually in that trial your
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defense attorney conceded that you had the cocaine,” and Appellant
“ran to the bathroom and (you) flushed it down the toilet, your
defense attorney conceded that.” (Vol. VI, p. 309, lines 6-11). No
curative instruction [sic] given by the trial court to this line of
question[ing] and there was no offering of probative value by the
State. The State kept hammering away on Appellant, stating that “At
least twice in the six months prior to them executing the search
warrant at your house the Memphis Police Department found crack at
your house.” (Vol. VI, p. 312, lines 10-12). Appellant adamantly
denied knowing of the cocaine or crack being present in his home on
all occasions.
First, Defendant did not object to most of the testimony for which he complains was
improperly elicited. The only time that Defendant objected was prior to the jury-out
hearing that the trial court conducted at the State’s request during Defendant’s cross-
examination. At that point, Defendant himself had already “opened the door” by asking
Officer Robinson if he conducted a criminal background check on Defendant. The
following exchange took place at trial during Defendant’s cross-examination of Detective
Robinson:
Q. Don’t have the witness, don’t have the audio and video. You did a
background check on [Defendant]; right?
A. Uh-huh
Q. Okay. What did you find out about [Defendant] in the background
check?
[PROSECUTOR]: Judge, may we approach?
THE COURT: Sure.
* * *
[PROSECUTOR]: I’m happy for him to answer that question.
THE COURT: All right, go ahead.
[PROSECUTOR]: Okay.
THE COURT: He can go ahead and ask him. You can ask him the
question.
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[PROSECUTOR]: I don’t think he wants him to.
* * *
Q. (BY [DEFENDANT]) What did you find out in your background
check on [Defendant]?
A. That we have previously did [sic] a search warrant at your house,
[Defendant]. Your ties to the house as far as you being there and me
seeing you come in and out of the location with a key, being there at
different times of the day.
On redirect examination, the following exchange took place between Officer
Robinson and the prosecutor:
Q. So you got a tip from [a] confidential informant and instead of
acting on that tip you went and double checked it?
A. Yes, ma’am.
Q. And you said in your testimony you had actually executed a search
warrant at [Defendant’s] house before?
A. Yes, ma’am.
Q. So, so this wasn’t the first time you had gotten such a tip?
A. No, ma’am, it a - - no, he wasn’t new to me and the operation
wasn’t new to me also. I just like to verify the information that I’m
given.
On recross-examination, Defendant asked Officer Robinson additional questions
about a previous search warrant:
Q. You said that you were, you were familiar with [Defendant]?
A. Yes, sir.
Q. Through a previous case?
A. Yes, sir.
Q. On that previous case did you have a search warrant then?
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A. Yes, sir.
Q. Was [Defendant] named on the search warrant?
A. No, sir.
Q. So your information, your previous involvement really didn’t
involve [Defendant], did it?
A. Yes, sir, it did.
Q. It did?
A. Yes, sir. On the previous search warrant at your house, if I can
remember right, when we came into the house you then had hands on
drugs at that time also.
Defendant did not object to the State’s question to Officer Robinson as to how he
knew Defendant nor did Defendant object to Officer Robinson’s answers to Defendant’s
questions about his (Defendant’s) background. Defendant did not object to any further
questioning of Officer Robinson by the State about prior searches of Defendant’s house.
It is a well-established rule that a defendant’s failure to timely object and call this issue to
the trial court’s attention constitutes a waiver of appellate review of the issue. See Tenn.
R. App. P. 36(a); State v. Hall, 8 S.W.3d 593, 603 (Tenn. 1999); State v. Thornton, 10
S.W.2d 229, 234 (Tenn. Crim. App. 1999). Defendant also failed to request a 404(b)
hearing at that time. While a trial court may sua sponte conduct a hearing, the language
of the rule indicates that “the trial court was not obligated to conduct such a hearing
absent a request.” State v. Hall, 958 S.W.2d 679, 707 (Tenn. 1997) (app’x); see also
State v. Jones, 151 S.W.3d 494, 498 n.3 (Tenn. 2004) (declining to consider whether
evidence should have been excluded pursuant to 404(b) when the defendant failed to
request a 404(b) hearing). As the defendant did not request a 404(b) hearing, the trial
court was not obligated to conduct one. Accordingly, this issue is waived. We also
decline plain error review.
As to the State’s questioning of Defendant on cross-examination about the prior
search warrants, Defendant opened the door to this testimony by asking Officer Robinson
questions about Defendant’s background. It was not until the State requested a hearing
during Defendant’s cross-examination to “talk about the August 1st and the August 19
incidents where [Defendant] was found with crack cocaine” that Defendant finally
objected. However, at that point, the jury had already heard testimony about the prior
searches, and Officer Robinson specifically testified that “if I can remember right, when
we came into the house you then had hands on drugs at that time also.” Tenn. R. App. P.
36(a) states that no relief is required for “a party responsible for an error or who failed to
- 23 -
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.” See also, State v. Frank H. Gonzales, Jr., No. M2000-03219-CCA-R3-CD,
2002 WL 31487520, at *2 (Tenn. Crim. App. Oct. 29, 2002)(Defendant opened the door
to testimony regarding her motivation for cooperating with the police by raising the issue
while questioning another witness).
Furthermore, we do not conclude that the State violated this court’s instructions in
the opinion of the prior appeal. Those directives clearly pertained only to a situation on
retrial where Defendant did not open the door for admission of evidence of the prior
searches. Defendant is not entitled to relief on this issue.
III. Sentencing for Simple Possession of Marijuana
Defendant argues that his two-year sentence for simple possession of marijuana,
third offense, a Class E felony, is illegal because “[o]n July 1, 2016, [the] Tennessee
Legislature amended [T.C.A.] § 39-17-418 by removing the enhancement that made three
or more convictions of misdemeanor possession casual exchange qualify for an
enhancement from a class A misdemeanor to a class E felony. See Tenn. Code Ann. §
39-17-418, 2016, ch. 876, § 12.” Even though the statute was in effect at the time
Defendant committed the offenses in February of 2008 and at the time he was sentenced
in January of 2016, Defendant argues that the amendment to the statute should be applied
retrospectively. We disagree.
At the time of the offenses and the sentencing hearing in Defendant’s case,
Tennessee Code Annotated section 39-17-418 provided that “[i]t is an offense for a
person to knowingly possess or casually exchange a controlled substance,” and such a
violation was a Class A misdemeanor. T.C.A. § 39-17-418(a),(c). Where the defendant
had two or more prior convictions under section 39-17-418, the offense was a Class E
felony. Id. § 39-17-418(e). Tennessee Code Annotated section 39-17-418(e) was
amended effective July 1, 2016, to delete subsection (e) and substitute instead the
following: “(e) A violation under this section is a Class E felony where the person has
two (2) or more prior convictions under this section and the current violation involves a
Schedule I controlled substance classified as heroin.” 2016 Tenn. Pub. Acts, c. 876, § 12.
“[S]tatutes are presumed to apply prospectively in the absence of clear legislative
intent to the contrary.” State v. Thompson, 151 S.W.3d 434, 442 (Tenn. 2004) (citing
Van Tran v. State, 66 S.W.3d 790, 797-98 (Tenn. 2001); State v. Cauthern, 967 S.W.2d
726, 735 (Tenn. 1998)). If the legislature intended the amendment to apply retroactively,
it could have stated so. See State v. Odom, 137 S.W.3d 572, 582 (Tenn. 2004). In this
case the legislature stated that the amendment at issue was to take effect on July 1, 2016.
2016 Tenn. Pub. Acts, c. 876, § 12. Because no legislative intent to the contrary is
shown, we presume that the amended subsection (e) applies to offenses committed on or
after July 1, 2016. Also, when a penal statute is amended by a subsequent legislative act,
- 24 -
an offense committed before the amendment “shall be prosecuted under the statute in
effect at the time of the commission of the offense.” T.C.A. § 39-11-112. Therefore,
Defendant was properly sentenced to two years for third offense simple possession of
marijuana, a Class E felony, in accordance with the statute that was in effect at the time
of his offense.
IV. Improper Testimony by the State’s Expert Witness
Defendant contends that the trial court erred by allowing the State’s expert
witness, Officer Michael Gibbs, to testify that Defendant “looks ‘healthy,’ and resembled
a drug seller because he did not display any of the physical characteristics of a crack
user.”
The admissibility of expert testimony is governed by Rule 702 of the Tennessee
Rules of Evidence. “If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Tenn. R. Evid. 702. Our
supreme court has further defined the role of the trial court in assessing the propriety of
expert testimony:
Trial courts act as gatekeepers when it comes to the admissibility of
expert testimony. Their role is to ensure that an expert, whether basing
testimony upon professional studies or personal experience, employs in
the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field. A court must assure itself that
the expert’s opinions are based on relevant scientific methods, processes,
and data, and not upon an expert’s mere speculation. The court’s
reliability analysis has four general inter-related components: (1)
qualifications assessment, (2) analytical cohesion, (3) methodological
reliability, and (4) foundational reliability.
State v. Scott, 275 S.W.3d 395, 401-02 (Tenn. 2009) (internal citations and quotation
marks omitted).
Trial courts are vested with broad discretion in resolving questions regarding the
admissibility of expert testimony. State v. Copeland, 226 S.W.3d 287, 301 (Tenn. 2007).
On appellate review, we will not disturb a trial court’s decision regarding the admission
or exclusion of expert testimony absent an abuse of discretion. Scott, 275 S.W.3d at 404.
A trial court abuses its discretion when it applies incorrect legal standards, reaches an
illogical conclusion, bases its decision on a clearly erroneous assessment of the evidence,
or employs reasoning that causes an injustice to the complaining party. State v. Ruiz, 204
S.W.3d 772, 778 (Tenn. 2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn.
- 25 -
2006)). At trial, the burden rests on the party proffering the expert witness to establish
that the evidence “rests upon ‘good grounds.’” Scott, 275 S.W.3d at 404.
Concerning the appearance of crack cocaine users and drug dealers, Officer Gibbs
testified:
You would see they - - the pipes get really hot. You’d see what we call
the ring from the glass or metal pipe. You can’t smoke it in plastic
because you can’t get it hot enough, well the plastic starts to melt so
that’s why they use glass pipes and or metal pipes. They put Chore Boy
in the end of it and they smoke and get a burn sometimes on their
fingers, severe burns on their fingers and they get a, if their lips touch the
pipe, they’ll get a U shape.
Crack users also it, as I say, it looks as if their losing like weight. Those
guys who are addicted to crack they start to change physical
appearances. You start to look like you’re getting older and you could
be, you know, a younger guy. It takes, it takes away your youth. It takes
away your vitality.
* * *
Drug dealers, I mean, they come in all shapes and sizes. We’ve had an
older lady who could have been my grandmother selling this stuff. But
they tend to be normal looking people. Healthier people. They don’t
have the char - - they don’t have, like I said, the crack, the burnt lips, the
fingers from where they’ve been holding the pipes. So they more blend
in with us or people who aren’t on or addicted to crack.
When asked if Defendant displayed any of the characteristics of a crack cocaine user,
Officer Gibbs replied: “He looks healthy to me.” Defendant objected, and the trial court
overruled the objection.
Officer Gibbs’ testimony was within his field of expertise, and Defendant has not
shown that his testimony was improper nor was it prejudicial to Defendant. Officer
Gibbs was qualified, based on his training and experience, to look at Defendant and
determine whether Defendant had the appearance of a crack cocaine user. Defendant is
not entitled to relief on this issue.
V. Prosecutorial Misconduct
For this issue, Defendant argues the following:
- 26 -
The State Committed Prosecutorial Misconduct By Mentioning and
Eliciting Testimony of Prior Searches and Search Warrant in its Case-In-
Chief, Running Afoul With this Court’s Ruling on Direct Appeal, by
Using Improper Convictions to Impeach [Defendant], and During Its
Closing Argument When it Told the Jury [Defendant] Was Simply
Trying to Confuse the Jury.
(emphasis in original).
In State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003), this court outlined
“five general areas of prosecutorial misconduct”:
(1) intentionally misleading or misstating the evidence;
(2) expressing a personal belief or opinion as to the truth or falsity of the
evidence or defendant’s guilt;
(3) making statements calculated to inflame the passions or prejudices of
the jury;
(4) injecting broader issues than the guilt or innocence of the accused; and
(5) intentionally referring to or arguing facts outside the record that are not
matters of common public knowledge.
“In determining whether statements made in closing argument constitute
reversible error, it is necessary to determine whether the statements were improper and, if
so, whether the impropriety affected the verdict.” In connection with this issue, we must
also examine the following factors:
(1) the conduct complained of viewed in context and in light of the facts
and circumstances of the case[;]
(2) the curative measures undertaken by the court and the prosecution[;]
(3) the intent of the prosecutor in making the statement[;]
(4) the cumulative effect of the improper conduct and any other errors in
the record[; and]
(5) the relative strength or weakness of the case.
- 27 -
State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996) (quoting Judge v. State,
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)). Even if a prosecutor’s comments,
however, are found to be improper, whether the misconduct amounts to reversible error
depends on whether the comments had a prejudicial effect on the jury. State v. Thornton,
10 S.W.3d 229, 235 (Tenn. Crim. App. 1999).
First, Defendant argues that the State committed prosecutorial misconduct by
mentioning and eliciting testimony during its case-in-chief of prior searches executed at
Defendant’s house. However, as discussed earlier in this opinion, Defendant did not
object to this testimony on the basis of relevance or on the basis of prosecutorial
misconduct, and he elicited testimony of prior searches during his cross-examination of
Officer Robinson. Therefore, this issue is waived. See Tenn. R. App. P. 36(a). We also
decline to review this issue for plain error.
Next, Defendant contends that the State committed prosecutorial misconduct by
using improper convictions to impeach him during cross-examination. During cross-
examination, the State requested a jury-out hearing concerning this matter. The
prosecutor stated: “I think he’s [Defendant] pretty much kicked the door wide open for
me to talk about some of the other incidents. The following exchange then took place:
THE COURT: All right, [prosecutor], what is it you want to do?
[PROSECUTOR]: Judge, I want to talk about the August 1st and the
August 19 incidents where [Defendant] was found with crack cocaine.
He said he hasn’t had it since 1985. And he was found on two separate
occasions and I would like to ask him about it.
THE COURT: And the day of this incident, remind me.
[PROSECUTOR]: It was February 29, 2008.
THE COURT: And these happened August 1st.
[PROSECUTOR]: August 1st and August 19th of 2007, in the same
house, on the same street.
THE COURT: She wants to ask you about that, what’s your take on
that, [Defendant]?
[DEFENDANT]: She asked me had I smoked crack.
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THE COURT: No, what - - she’s wanting to introduce those, talk to
you about those matters in front of the jury, is that okay with you or do
you object to her?
[DEFENDANT]: I object to it. But I want to say this, though, your
Honor, she asked me had I smoked - - the last time I smoked and I said
1985. That’s what she asked me.
THE COURT: All right. Well, here’s - - I’m going to let her ask. I
think the door has been opened about this for multiple reasons. One
thing, during the testimony of a prior witness, let’s see, that was Kittrel
Robinson, during the testimony Kittrel Robinson, Mr. Jones [sic], you
asked me and elicited that he had previously done a search warrant at
your house. And you also elicited from him that in a previous case you
had drugs in your hands. All of which if you’d of had a lawyer may not
of ever gotten in but you weren’t smart enough to keep that part out. So
you’ve already opened the door and now you claim that you - -
[DEFENDANT]: May I say something about that, your Honor?
THE COURT: No, not until I’m finished making my ruling and then
I’ll let you talk. But then here on cross-examination by the State, she’s
now claiming in addition to that you’ve opened [the] door by your
claims with regard to not having any cocaine in your possession for a
number of years. And then you generally denied that you had any
knowledge that this cocaine was in your house. You don’t contest the
cocaine was in your house, do you?
[DEFENDANT]: No, sir, I never - -
THE COURT: But you’re just claiming it’s none of mine. I don’t - -
[DEFENDANT]: It’s not mine.
THE COURT: I don’t have any kno - - I wasn’t in on it. I don’t
have any guilty knowledge of it. You didn’t even know it was there, did
you?
[DEFENDANT]: Well, I probably knew it was there so.
THE COURT: Okay. Well then she’ll ask you that when the jury
comes back. But are you going to ask me to introduce 404(b) proof of
this? Or just want to ask him about it?
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[PROSECUTOR]: I just want to ask him about it right now, judge.
THE COURT: Go ahead.
[PROSECUTOR]: After he’s done testifying I may speak with Detective
Robinson and put in the 404(b) proof. But right now I just want to ask
him about it.
THE COURT: Well unless I know - - I believe he’s opened the door
but I also want to in my mind feel confident that if you wanted to put on
proof of substantively about this that it would qualify under 404(b).
Now in looking at this objectively under 404(b) we’re talking about the
evidence that within, what, six months, how many months was it?
[PROSECUTOR]: August to February, so roughly six months.
THE COURT: About six months. Within six months twice this
house, which I think based upon your expert’s testimony could pretty
much be described as, what, a trap house?
[PROSECUTOR]: A trap house, yes.
THE COURT: You know, within months [Defendant] is physically
present when they have all this cocaine around. And in one of the
incidents he’s flushing the cocaine down the toilet which, and by the
way, he’s convicted of that. So talking about clear and convincing
evidence.
[PROSECUTOR]: Judge, he’s been convicted of the August 17th matter
too, he’s plead guilty.
THE COURT: So he’s been actually convicted of the August 1st and
th
the August 17 , so that’s clear and convincing evidence.
[PROSECUTOR]: He actually plead guilty to possession of cocaine
which is direct, directly controverts what he’s testified to today.
At conclusion of the hearing, the trial court made the following findings:
THE COURT: Yeah. Well, so, again, does - - is this relevant to
something other than propensity and of course I think it would be
relevant evidence as to his intent. I think it’s relevant to his guilty
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knowledge. I think it’s relative to his knowledge [,] intent. I mean you
can’t operate a trap house and then say all this stuff, I had no clue that
these drugs are in my house. And so I think it relates to all of that.
I think this is significantly different than when this case previously went
to the Court of Criminal Appeals because I - - for two reasons. I have
not ruled prior to his testimony that this stuff comes in under 404(b). I
gave him a chance to raise all of these issues in his testimony.
It’s also significantly different because in the direct examinat[ion] - - I
mean his cross-examination he opened [the door] to some of this stuff.
So when you weigh probative value versus prejudicial effect, the jury
kind of knows about this prior incident already, so that comes into play.
So I think looking at this under 404(b) that before I would allow any
substantive evidence of this I would have to have a jury-out hearing, I’d
have to find the evidence relevant to [a] material issue other than
propensity and I’ve stated that those material issues are that I find
evidence other than propensity. Must exclude evidence if the probative
value is outweighed by the danger of unfair prejudice. And I have to
find clear and convincing evidence.
I heard this proof in the prior trial and found clear and convincing
evidence. He’s since been convicted of both of these incidents which
makes it clear and convincing evidence. And I only exclude the
evidence if its probative value is outweighed by the danger of unfair
prejudice. And since he’s opened the door to this and now has put his
intent and knowledge and all this stuff in issue for the first time, I think
that substantive evidence under 404(b) would be admissible and that this
is distinctly different from what procedurally [ ] went up to the Court of
Criminal Appeals before.
I will say this, that in the prior opinion of the Court of Criminal Appeals
they quoted me in reversing me but didn’t quote my entire paragraph. I
said in with regard to intent that normally you don’t just let in intent
unless there’s some prior similar connection. And I think that the same
house here is involved in a relatively short period of time. This is sort of
like the - - so I find connectedness here that makes this different from the
normal case.
In the prior opinion in the Court of Criminal Appeals didn’t think much
of my connectedness analysis but this is somewhat like in the domestic
violence incident. Prior crimes of acts of violence against the same
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victim are admissible sometimes under 404(b), when if they were
different victims it wouldn’t .
So this is the same house. It’s the same deal, so. With it being in this
procedural different context with him having elicited this himself in part
of his proof and with me not ruling prior to his testimony that this comes
in but letting him put all these issues that I find it relevant an issue, first.
I think that you could under 404(b) introduce this stuff.
So I’m not saying you’re making that decision but before I allow cross-
examination on any of this I just wanted to be sure in my mind that the
substantive proof to back it up [sic] but also it be available. So I’m
going to let you question him about - -
* * *
- - those in the presence of the jury. We’ll bring the jury back in.
Defendant contends that the State’s use of prior convictions to impeach his
credibility violates Tenn. R. Evid. 609 and amounts to prosecutorial misconduct. The
admissibility of an accused’s prior convictions is governed by Rule 609 of the Tennessee
Rules of Evidence. Rule 609 permits the accused’s credibility to be impeached by prior
criminal convictions on cross-examination if certain conditions and procedures are
satisfied. The conviction must be for a crime (1) punishable by death or incarceration in
excess of one year, or (2) involving dishonesty or false statement. Tenn. R. Evid.
609(a)(2). Generally, convictions that are ten years old or more cannot be used for
purposes of impeachment. Tenn. R. Evid. 609(b). The State is also required to give
reasonable written notice prior to trial of the particular convictions it intends to use to
impeach the accused. Tenn. R. Evid. 609(a)(3).
Before permitting the use of a prior conviction, the trial court must find that the
probative value of the conviction on the issue of credibility outweighs its unfair
prejudicial effect on the substantive issues. Id. The trial court shall rule on the
admissibility of the prior conviction before the accused testifies. Id. If the court rules
that the prior conviction is admissible to impeach, there is no requirement that the
accused testify at trial in order to later challenge the court’s ruling on the admissibility of
the prior conviction. Id. The underlying facts of the conviction are inadmissible. See
Long v. State, 607 S.W.2d 482, 485 (Tenn. Crim. App. 1980); see also Neil P. Cohen, et
al., Tennessee Law of Evidence, § 6.09[11][f] (4th ed.2000) (citing Long and stating that
“[i]f a criminal conviction is used to impeach under Rule 609, counsel . . . is precluded
from inquiring about the details of the offense”). A trial court’s decision to admit
evidence of prior convictions pursuant to Tennessee Rule of Evidence 609 is reviewed
under an abuse of discretion standard. State v. Waller, 118 S.W.3d 368, 371 (Tenn.
2003). A trial court abuses its discretion when it applies an incorrect legal standard or
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reaches a decision that is against logic or reasoning that causes an injustice to the party
complaining. State v. Gomez, 367 S.W.3d 237, 243 (Tenn. 2012).
In this case, it was not prosecutorial misconduct for the State to ask Defendant
about his prior convictions because a jury-out hearing was held, and the trial court
specifically found that the State could question Defendant about “the August 1st and the
August 19 incidents where [Defendant] was found with crack cocaine.” The trial court
also found that the State could question Defendant about the prior searches, as
substantive evidence, under Tenn. R. Evid. 404(b). Therefore, the State’s questioning of
Defendant on cross-examination concerning his prior convictions does not rise to the
level of prosecutorial misconduct. Also, as we have previously addressed in this opinion,
Defendant opened the door to this testimony during his questioning of Officer Robinson.
Furthermore, since the trial court mentioned this Court’s analysis in the prior
appeal, we take this opportunity to clarify that we explicitly reject this trial judge’s
analysis in the case sub judice. We conclude it was not error to admit the evidence, on
the sole basis that Defendant opened the door for the proof to be admitted. There was
more than “ample other non-prejudicial evidence available to the prosecution to prove the
issue [of intent],” W. Mark Ward, Tennessee Criminal Trial Practice § 22:24, at 670
(2014-2015 ed.), and therefore absent Defendant’s pro se missteps, the facts of the prior
searches should not have been introduced as substantive evidence.
Finally, Defendant contends that the State committed prosecutorial misconduct in
its closing argument by stating:
At the end of this, [Defendant] is going to get up and talk to you. It’s
been said and I’ve heard it a number of times, I actually heard it from
one of the most respected attorneys in this county, it was in my first jury
trial, he said you know what they teach us at defendant attorney’s
school? If you can’t convince them, confuse them. That’s what
[Defendant] is going to get up here and do. Don’t get bogged down in
what [Defendant] is going to get up here and say.
However, Defendant failed to object to the State’s argument. Therefore, this issue is
waived. See Tenn. R. App. P. 36(a). We also decline plain error review of this issue.
However, we do note that in the quoted argument, the prosecutor violated factor
number (5) of Goltz, by intentionally arguing facts outside the record which are not
matters of common public knowledge. We also observe, even though it is also waived as
an issue by failure to object at trial and to argue it on appeal, that the prosecutor violated
factor (2) of Goltz, expressing a personal belief of Defendant’s guilt by stating the
following during closing arguments:
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The State has to prove beyond a reasonable doubt that [Defendant]
possessed the cocaine. That it is cocaine. And that he had it with the
intent to sell it and he had it with the intent to deliver it. You know how I
know that he had it with the intent to sell it and he had it with the intent
to deliver it? Not just because it’s packaged up and ready to go, not just
because it weighs almost eighteen times the legal weight or something. I
know because remember what I told you, [Defendant] gets crack, people
give him money and he gives it to them. That’s how I know.
[Defendant] is a drug dealer, that’s the bottom line. That’s what he was
doing on February 29 of 2008.
* * *
None of that is important. The State doesn’t have to prove actual sale.
The State had to prove with intent. This is his intent. His intent was to
sell drugs. His intent was to put crack cocaine on the streets of
Memphis, that was his intent. [Defendant] is a drug dealer. You know
how I know? Because he told you. Thank you, ladies and gentlemen.
(emphasis added).
VI. Trial Court’s Comments on Legality of the Search Warrant
Defendant contends that the trial court “committed reversible error by commenting
on evidence in the jury’s presence when it, on several occasions, told [Defendant] the
search warrant underlying this case was legal.”
The trial transcript reveals three occasions where the trial court told Defendant that
it had already ruled that the search warrant was legal or valid. However, Defendant
concedes that he failed to make a contemporaneous objection to any of the three
comments about which he complains. Consequently, Defendant has waived this issue.
See Tenn. R. App. P. 36(a)(providing that an appellate court need not grant relief where a
party failed to take reasonably available action to prevent or nullify an error); see also
State v. Jordan, 325 S.W.3d 1, 57-58 (Tenn. 2010).
VII. Cumulative Error
In his final issue, Defendant contends that each of the claims that he has raised
“individually would warrant a new trial,” but he argues additionally that “the cumulative
effect of these errors warrant a reversal of [Defendant’s] convictions.” See State v.
Hester, 324 S.W.3d 1, 76 (Tenn. 2010) (“The cumulative error doctrine is a judicial
recognition that there may be multiple errors committed in trial proceedings, each of
which in isolation constitutes mere harmless error, but which when aggregated, have a
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cumulative effect on the proceedings so great as to require reversal in order to preserve a
defendant’s right to a fair trial”). Having found no error in the trial proceedings which
were not waived by Defendant, we need not consider the cumulative effect of the alleged
errors.
CONCLUSION
We affirm the judgments of the trial court.
____________________________________________
THOMAS T. WOODALL, PRESIDING JUDGE
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