FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE February 2, 1996 AT NASHVILLE Cecil W. Crowson NOVEMBER 1993 SESSION Appellate Court Clerk
STATE OF TENNESSEE, ) ) No. 01C01-9307-CC-00224 Appellee, ) ) Williamson County v. ) ) Hon. Henry Denmark Bell, Judge CATHERINE WARD, ) ) (Promoting Prostitution) Appellant. )
For the Appellant: For the Appellee:
David L. Raybin Charles W. Burson Attorney at Law Attorney General & Reporter 424 Church Street, 22nd Floor Nashville, TN 37219 Christina S. Shevalier (Appeal Only) Assistant Attorney General 450 James Robertson Parkway R. Ray Galbreath Nashville, TN 37243-0493 Attorney at Law 901 Stahlman Building Joseph D. Baugh Nashville, TN 37201 District Attorney General (Trial Only) Timothy L. Easter Asst. District Attorney General Post Office Box 937 Franklin, TN 37065
OPINION FILED:____________________________________
REVERSED & REMANDED
Penny J. White Judge O P I N I O N
Appellant, Catherine Ward, was convicted of promoting
prostitution, a Class E felony, by a jury. The trial court found
that appellant was a standard offender and imposed a Range I
sentence consisting of a fine of $3,000 and confinement for one
year in the Department of Correction.
Appellant presents seven issues for review. She contends
that:
1. the state failed to prove that appellant was knowingly promoting prostitution and that the conduct constituted sexual activity within the meaning of the statute;
2. the trial court abused its discretion in permitting a prosecution witness to testify that two prostitutes entered guilty pleas in violation of Tennessee Rules of Evidence 803(22);
3. the trial court abused its discretion in permitting a prosecution witness to testify that a prostitute told her that appellant was her "boss";
4. the search of appellant's purse and motor vehicle violated the Fourth Amendment to the United States Constitution and Article 1, § 7 of the Tennessee Constitution;
5. the trial court abused its discretion in permitting a Davidson County officer to testify to the results of his investigation into the prostitution business in Davidson County;
6. she was denied her constitutional right to the effective assistance of counsel by trial counsel; and
7. the trial court committed error in refusing to suspend appellant's sentence and grant her probation.
After a careful review of the record, we find that the
glaring deficiencies of trial counsel denied appellant her
2 constitutional right to a fair trial. Appellant's conviction must
be reversed and the case remanded for a new trial.
In view of our holding, we will discuss issues 2, 3, 4,
5, and 6 in connection with the ineffective assistance of counsel.
Since the case is being remanded for new trial, we need not
consider whether the trial court erred by sentencing appellant to
serve one year in the state penitentiary rather than granting
probation or some other form of alternative sentencing.1
I. FACTS
Catherine Ward was the owner and operator of a dating and
escort service in Nashville. She had thirty-nine different
listings in the yellow pages of the Nashville phone book. Although
each listing was in a different name and had a different telephone
number, all of the thirty-nine telephone numbers reached
appellant's place of business and were answered by the same person.
In this case, on the evening of October 3, 1991, Jimmy
Hester, a detective, called Beth's Touch of Class. The telephone
number was listed in appellant's name and was answered at
appellant's place of business. The officer made arrangements for
two women to come to his room at the Hilton Hotel in Brentwood.
After several telephone calls, Sherman Ann "Sherrie" Swartz and
April Lynn Ashworth came to the room. Swartz collected the agreed
amount of $350. After undressing in the bathroom, the two women
1 We note, however, that the trial judge failed to follow the guidelines in State v. Ashby, 823 S.W.2d 166 (Tenn. 1992). In fact, the trial judge never considered any form of alternative sentencing. As a Range I, standard offender, sentenced for a Class E felony to a one-year sentence, appellant is presumed to be a favorable candidate for alternative sentencing absent evidence to the contrary. Tenn. Code Ann. § 40-35-102(6)(1995 Supp.). If appellant is convicted upon retrial, the trial court should consider the criteria for alternative sentencing found in the statutes and should place findings on the record.
3 lay in bed facing each other. They had not touched one another
when Hester signalled officers in an adjoining room to arrest the
two women. The women were arrested, booked at the Brentwood Police
Department, and issued citations for prostitution. Agent Hester
testified that the two women later pled guilty to prostitution, a
misdemeanor offense.2
Later that night, Mary McGaughy, a detective who
participated in the sting, saw Swartz in the parking lot of the
Hilton Hotel. Swartz was standing beside a car talking to the
driver. When McGaughy asked Swartz what she was doing, Swartz told
her that she was talking to her boss. McGaughy told Swartz to
leave the parking lot. McGaughy learned that appellant was the
driver of the motor vehicle. She retained appellant's driver's
license until she informed the Brentwood police officers who were
participating in the investigation. An officer searched
appellant's purse and seized a pager, an address book, a quantity
of cash, and appellant's business cards. A search of the interior
and trunk of the vehicle uncovered nothing of interest. Appellant
was arrested and charged with promoting prostitution.
Over objection, Sergeant Joe Blakley of the Metropolitan
Police Department testified at length concerning his involvement in
a state-wide task-force investigating prostitution. He also
detailed the results of a search he conducted at appellant's
business address approximately one year prior to appellant's arrest
2 Only Agent Hester testified to these events. The person with whom he spoke at Beth's Touch of Class was never identified. The second woman who returned his calls was identified only as "Crystal." She did not testify. Neither Swartz nor Ashworth testified at trial. The state entered a video tape made while Swartz and Ashworth were in the hotel room into evidence. (The camera was disguised as a lamp.).
4 in this case. Sergeant Blakley observed the Swartz and Ashworth
arrest but did not observe the arrest or search of appellant.
Appellant described her business as "legitimate." A
written agreement which she had with each person who worked for her
designated the person as an independent contractor, not an
employee, and provided that the person would not engage in any
illegal conduct. The women she employed were engaged to escort men
to parties, dinners, and other social events and to provide
conversation and companionship. Occasionally, the women acted as
models. On the night of the arrests, appellant was advised that
Swartz and Ashworth escorted a man to a dinner party at the Hilton.
When Swartz and Ashworth failed to check in with the dispatcher and
did not respond to their pagers, appellant was notified. She then
went to the hotel to see if they needed assistance. Her arrest
followed.
II. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
When an accused challenges the sufficiency of the
convicting evidence, this court must review the record to determine
if the evidence adduced at the trial is sufficient "to support the
finding by the trier of fact of guilt beyond a reasonable doubt."
Tenn. R. App. P. 13(e). This rule is applicable to findings of
guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dykes,
803 S.W.2d 250, 253 (Tenn. Crim. App.), perm. to appeal denied,
(Tenn. 1990).
In determining the sufficiency of the evidence, this
court does not reweigh or reevaluate the evidence. State v.
5 Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court
substitute its inferences for those drawn by the trier of fact from
circumstantial evidence. Liakas v. State, 286 S.W.2d 856, 859
(Tenn. 1956). To the contrary, this court is required to afford
the State of Tennessee the strongest legitimate view of the
evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State
v. Cabbage, 571 S.W.2d at 835.
Questions concerning the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact,
not this court. Id. In State v. Grace, 493 S.W.2d 474 (Tenn.
1973), our Supreme Court said: "A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the
theory of the State." State v. Grace, 493 S.W.2d at 476.
Since a verdict of guilt removes the presumption of
innocence and replaces it with a presumption of guilt, id.,
appellant has the burden of illustrating why the evidence contained
in the record is insufficient to support the verdicts returned by
the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). This court will not disturb a verdict of guilt due to the
sufficiency of the evidence unless the facts contained in the
record, and any inferences which may be drawn from the facts, are
insufficient, as a matter of law, for a rational trier of fact to
find the accused guilty beyond a reasonable doubt. State v.
Tuggle, 639 S.W.2d at 914.
6 In this case, the evidence contained in the record is
sufficient to support a finding by a rational trier of fact that
appellant was guilty of promoting prostitution beyond a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,
(1979). Agent Hester called the business admittedly owned by
appellant and spoke to a "dispatcher." "Crystal" returned his
call. When the agent requested two women, Crystal said she did not
know what to charge but she said she would find out and call Hester
back with a price. The dispatcher in turn called Hester, advised
him that the woman who called him was not comfortable doing what
Hester wanted, and that the company was trying to find two "girls"
who would meet his requirements.3 Later, Swartz and Ashworth
appeared at Hester's room. Hester paid Swartz for the services to
be performed, the two women undressed, and climbed into bed.
Appellant admitted that she was the sole owner and
proprietor of Beth's Touch of Class, one of the thirty-nine
entities that comprised the escort service. When a "gentleman"
called any of the thirty-nine numbers, the call reached the same
dispatcher. On October 3, 1991, the fees charged were $120 for a
half hour and $175 for a full hour of one girl's time, and Hester
paid the two women a total of $350. Although the women never
engaged in any sexual acts with each other or with Hester, their
activities certainly support an inference that they were about to
engage in sexual activity and that the escort service was aware of
that activity. When all of the evidence presented at trial is
3 Neither the dispatcher nor the officer made specific reference to any sexual activity. However, the circumstances and the double entendres contained in the conversations are sufficient to support the inference that Hester was seeking to watch two "girls" perform lesbian sex.
7 considered, the evidence is sufficient to support appellant's
conviction for promoting prostitution beyond a reasonable doubt.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
After her conviction, appellant obtained new counsel. In
a motion for new trial, counsel contended that, among other errors,
appellant had been denied effective assistance of counsel at trial
because of the following deficiencies in representation:
1. the failure to file a pretrial motion to suppress as evidence a pager, address book, business cards, and approximately $787 in cash, which were obtained from appellant's purse by a Brentwood police officer;
2. the failure to object to Jimmy Hester's testimony that the two women who came to the hotel on the evening in question had been convicted of prostitution following their guilty pleas to the offense;
3. the failure to object to the testimony of Mary McGaughy that Sherman Ann "Sherrie" Swartz told her that she was talking to her "boss" while standing next to appellant's motor vehicle;
4. the failure to object to the testimony given by Sergeant Joe Blakley of the Metropolitan Police Department; and
5. the failure to move the trial court pretrial for an instruction on the punishment for the principle offense alleged in the presentment and the lesser included offense.
The trial judge found that while some of the testimony
complained of should have been excluded, the erroneously admitted
evidence was harmless in the context of appellant's trial. The
judge concluded that defense counsel's actions or failure to act
had been consistent with the defense theory that appellant was
engaged in a legitimate business and that any wrongdoing had been
8 committed by Swartz and Ashworth without her knowledge or
encouragement. Therefore, the court concluded that appellant was
not denied effective assistance of counsel. We respectfully
disagree.
1. LEGAL STANDARDS
When there is a post-trial hearing on the issue of
whether the accused was denied the effective assistance of counsel,
the findings of fact made by the trial court at the conclusion of
the hearing have the weight of a jury verdict. Consequently, this
court is bound by the trial court's findings of fact unless the
evidence contained in the record preponderates against the judgment
entered by the trial court.4
Since the trial court found that appellant failed to
establish she was entitled to a new trial on this ground, this
court must review the record to determine whether the trial
court's findings of fact preponderate against the judgment entered
in this case.5 In doing so, this court is bound by certain well-
established rules governing appellate review.
First, this Court cannot reweigh or reevaluate the evidence; nor can we substitute our inferences for those drawn by the trial judge. Second, questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are resolved by the trial judge, not this Court. Third, appellant has the burden in this Court of illustrating why the evidence contained in the record
4 Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990); Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991). 5 Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1990); Brooks v. State, 756 S.W.2d 288, 290 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1988); Vermilye v. State, 754 S.W.2d 82, 84 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1987).
9 preponderates against the judgment entered by the trial judge.
Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1990).
Before an accused is entitled to a new trial on the
ground that trial counsel's representation was ineffective, the
accused must prove by a preponderance of the evidence that (a) the
services rendered or advice given by counsel fell below the "range
of competence demanded of attorneys in criminal cases,"6 and (b)
the unprofessional conduct or errors of counsel "actually had an
adverse effect on the defense."7
In determining whether the accused has factually
established a deprivation of the constitutional right to the
effective assistance of counsel, we recognize that neither the
State nor Federal Constitution requires perfect representation.8
Second, it is not our function to "second guess" trial counsel's
tactical and strategic choices pertaining to matters of defense
unless these choices are made without knowledge of the relevant
facts or the law applicable to the issue.9 "[T]he defense
6 Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 7 Strickland v. Washington, 466 U.S. 668, 693, (1984); Williams v. State, 599 S.W.2d 276, 279 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1980). 8 Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Vermilye, 754 S.W.2d at 85. In State v. Martin, 627 S.W.2d 139, 143 (Tenn. Crim. App. 1981), perm. to appeal denied, (Tenn. 1982), this court said "[t]here are no perfect lawyers." In Cureton v. Tollett, 477 S.W.2d 233, 235 (Tenn. Crim. App. 1971), cert. denied, (Tenn. 1972), this court said: "In the course of a trial, many legal situations occur which present choices in many directions. The lawyer must decide which course to take. [The lawyer] is not required to be infallible." 9 State v. Cooper, 849 S.W.2d 744, 746 (Tenn. 1993); Hellard v. State, 629 S.W.2d at 9; Vermilye v. State, 754 S.W.2d at 85; see also State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App.), (continued...)
10 attorney's representation, when questioned, is not to be measured
by '20-20 hindsight.'"10 Third, an accused is not deprived of the
effective assistance of counsel because a different procedure or
strategy might have produced a different result.11 Fourth, the
entire record, not "isolated acts or omissions," must be considered
in determining whether the petitioner was adequately represented.12
As this court said in State v. Mitchell:
Protection of an accused's right to effective assistance of counsel does not require that his attorney's every act or omission claimed to be deficient be examined in isolation. The issue is whether considering the case as a whole, including performance by the accused, counsel provided reasonable professional assistance. . . . As stated in Strickland v. Washington, 'the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.'13
(...continued) perm. to appeal denied, (Tenn. 1991); Sherrill v. State, 772 S.W.2d 60, 62 (Tenn. Crim. App. 1988), perm. to appeal denied, (Tenn. 1989); Smith v. State, 757 S.W.2d 14, 18 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1988); State v. Swanson, 680 S.W.2d 490 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1984); McBee v. State, 655 S.W.2d 191, 193 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1983); Tolliver v. State, 629 S.W.2d 913, 914-15 (Tenn. Crim. App. 1981), perm. to appeal denied, (Tenn. 1982). 10 Hellard v. State, 629 S.W.2d at 9. 11 Tolliver v. State, 629 S.W.2d at 914-15; Williams v. State, 599 S.W.2d at 279-80. In Long v. State, this court said:
Not every mistake of judgment or misconception of law made by defense counsel will deprive the accused of his constitutional right to effective representation, nor is the accused deprived of such right because a different procedure or strategy upon the part of counsel might have produced a different result.
Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied, (Tenn. 1974)(citations omitted). 12 State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1988); Long v. State, 510 S.W.2d at 88. 13 753 S.W.2d at 149 (citations omitted).
11 Fifth, there is "a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance
. . . ."14 Thus, petitioner must overcome "the presumption that,
under the circumstances, the challenged action 'might be considered
sound trial strategy.'"15
2. FAILURE TO FILE MOTION TO SUPPRESS
Appellant argues that Lieutenant Jones, the coordinator
of this undercover operation, arrested her while searching her
purse. She contends that trial counsel was ineffective in failing
to seek suppression of this evidence. The state argues that
appellant was arrested before Jones searched the purse and vehicle.
In the alternative, the state argues that this evidence, consistent
with the operation of a legal dating service, was not prejudicial
to appellant.
Since no motion to suppress was filed, and consequently
no hearing conducted, the facts surrounding the search and seizure
are sketchy. It is impossible for us to say without question that
the evidence should have been suppressed. It is clear, however,
that defense counsel should have filed a motion to suppress. The
officers had no search warrant. No exigent circumstances are
apparent. Therefore, the timing of the arrest and the basis for
the arrest are critical to the legitimacy of the search. A more
fully developed record of the circumstances surrounding the search
would have allowed an analysis of the suppression issue.
14 Strickland v. Washington, 466 U.S. at 689. 15 Strickland v. Washington, 466 U.S. at 689. As the United States Supreme Court said in Strickland: "There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Id.
12 Appellant has the obligation of proving the elements of
ineffective assistance of counsel. McBee v. State, 655 S.W.2d 191,
195 (Tenn. Crim. App. 1983). Thus, appellant would have to
establish that counsel was deficient in failing to file the motion,
and that, the failure prejudiced appellant. At the post-conviction
hearing, appellant should have offered the evidence which would
have been offered had a suppression motion been filed. We could
have before us a record sufficient to enable us to consider whether
the failure to file the motion prejudiced appellant. On this
insufficient record, however, we cannot conclude that the failure
to file a motion to suppress was a deficiency on the part of
counsel or that it prejudiced appellant in this case.
3. FAILURE TO OBJECT TO EVIDENCE ON CONVICTIONS
During the direct examination of Agent Jimmy Hester, the
following colloquy occurred:
Q. [Were] Swartz and Ashworth . . . arrested for prostitution that night?
A. Yes, sir. They were issued citations and they were taken to the Brentwood Police Department and fingerprinted and photographed, interviewed and then issued a citation.
Q. And subsequently those two pled guilty to that charge; did they not?
A. Yes, sir.
Trial counsel did not object to this testimony.
Appellant argues that "the State established one of the
elements of the offense by the hearsay convictions of the two women
when there was absolutely no opportunity for the defendant to
confront or cross-examine these two women as to why they 'plead
13 guilty' to prostitution." She further argues that this evidence
was "devastating against the defense" and cannot be considered
harmless in the context of this case. The trial judge found and
the state acknowledges that the admission of this evidence violated
the Tennessee Rules of Evidence. However, the state argues that
the admission of this evidence was harmless because there "was
ample proof presented at trial that the sole reason the two women
were in the hotel room was to engage in prostitution."
This evidence was hearsay. It is not admissible as an
exception under Tennessee Rules of Evidence 803(22).16 Further,
since testimony was the only direct evidence of the women's intent
to engage in prostitution, it was not harmless. Since neither
woman testified at trial, appellant could not confront or cross-
examine the witnesses. The admission was error and prejudiced
appellant.
Although not directly addressed in this appeal, we are
compelled to address other parts of Hester's testimony since it may
well arise upon retrial.17 Agent Hester related numerous statements
made during his conversations with the "dispatcher," "Crystal," and
16 That rule provides:
Judgment of Previous Conviction. -- Evidence of a final judgment adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year to prove any fact essential to sustain the judgment, but not including, when offered by the prosecution in a criminal case for purposes of other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. 17 This issue, which concerns the admissibility of the statements made by the dispatcher, "Crystal," Swartz, and Ashworth, was raised in appellant's motion for new trial. It was overruled without explanation in the trial judge's order.
14 the two women who came to the hotel room. Nearly all were
introduced for "the truth of the matter asserted" and are
statements, "other than one made by the declarant while testifying
at the trial or hearing." Tenn. R. Evid. 801(c). Unless an
exception to the hearsay rule is available, such statements are not
admissible. Defense counsel objected at one point and the trial
judge agreed that the testimony was hearsay. After a brief jury-
out discussion with counsel, the trial judge decided to admit the
testimony so long as the prosecution "could connect it up" later.
The state justified the evidence as part of the "res gestae." The
trial judge apparently believed the evidence to be admissible as
agent statements under Rule 803 (1.2)(D).
Neither ground supports the admission of most of the
statements related by Hester. "Res gestae" is an obsolete term
often inaccurately applied to excited utterances.18 The Tennessee
Rules of Evidence contain no "res gestae" exception.19 Further,
Rule 803(1.2)(D), of limited applicability in criminal cases,
applies only when the employees are acting within the scope of
their employment and when the statements are against the interest
of the employees as well as the employer. Since the testimony does
not qualify as either an excited utterance or an admission, it was
inadmissible. Much of the testimony should have been excluded.
4. FAILURE TO OBJECT TO HEARSAY STATEMENTS
Agent McGaughy testified without objection to a statement
identifying appellant as Swartz's boss. Appellant contends, and
the state agrees, that the statement attributed to Swartz was
18 See Neil P. Cohen, Donald F. Paine, Sarah Y. Sheppeard, Tennessee Law of Evidence § 803(2) (1990). 19 State v. Smith, 868 S.W.2d 561, 576-77 (Tenn. 1993).
15 introduced to prove that appellant was Swartz's boss, i.e., the
truth of the matter. The trial judge held, however, that the
admission of the hearsay evidence was harmless since there was
ample evidence to show that an employer-employee relationship
existed between Swartz and appellant.
Here, the state argues that the evidence was an admission
admissible under Rule 803(1.2)(D).20 Whether Swartz and Ashworth
were agents or servants of appellant was a contested issue at
trial. Swartz and Ashworth executed contracts that stated that
they were independent contractors, not employees. Apparently,
appellant did not withhold payroll taxes from the women. The
viability of the admissions exception under these circumstances is
questionable. A timely objection by counsel would have required
the court to exclude this statement which served as a basis for the
state's proof of an essential element.
5. EVIDENCE OF DAVIDSON COUNTY INVESTIGATION
During the months of July through October of 1990, more
than a year prior to the incident in question, the Metropolitan
Police Department began an investigation into prostitution
trafficking in Davidson County. The investigation included the
dating and escort services listed in the yellow pages of the
20 The rule provides:
The following are not excluded by the hearsay rule:
(D) a statement by an agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship under circumstances qualifying the statement as one against the declarant's interest regardless of declarant's availability . . . . Tenn. R. Evid. 803 (1.2).
16 Nashville telephone book. There were approximately 140 individual
telephone listings for these businesses. However, all of these
listings were to businesses operated by eight individuals.
Appellant had thirty-nine listings under separate business names.
She paid the telephone bills for all of these businesses.
Additionally, all of these telephone numbers were answered by an
individual referred to as "a dispatcher" at appellant's place of
business.
On October 11, 1990, officers executed a search warrant
at appellant's place of business in Davidson County. Several
records were confiscated from the business. The dispatcher was in
possession of a "pill." Also, Metropolitan police officers
contacted "various sources throughout Davidson County" and reviewed
"different written complaints sent in by different citizens in
Davidson County."
Trial counsel contested the relevancy of the testimony
regarding these investigations. In the motion for a new trial and
in this court, appellant contends that several portions of the
testimony were not admissible on various grounds. Each of
appellant's grounds will be addressed.
Appellant contends that the testimony regarding the 1990
investigation given by Sergeant Blakley was not relevant to the
offense of October 3, 1991 since it was too remote in time to bear
on the controverted factual issues. The term "relevant evidence"
is defined as "evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence." Tenn. R. Evid. 401. As a general rule, relevant
17 evidence is admissible. However, there are exceptions. The
evidence is not admissible if it is barred by the United States
Constitution, the Tennessee Constitution, the Tennessee Rules of
Evidence, or other rules of general application. Tenn. R. Evid.
402. Also, if the probative value of relevant evidence is
substantially outweighed by the danger of unfair prejudice, the
evidence should not be admitted. Tenn. R. Evid. 403. "Relevant
evidence" may also be excluded if the probative value of the
evidence is substantially outweighed by the danger of undue delay,
waste of time, or needless presentation of cumulative evidence.
Tenn. R. Evid. 404.
Basic to the concept of relevance is the requirement that
a lay witness have "firsthand knowledge" about the subject matter
of the witness's testimony. Tenn. R. Evid. 602. In the treatise,
Tennessee Law of Evidence, the authors state:
The personal knowledge rule of Rule 602 provides that . . . a witness is not competent to testify about facts unless the witness personally perceived those facts by use of the witness's five senses.
Neil P. Cohen, et al., Tennessee Law of Evidence § 602.1 at 2 & 3.
However, there are two exceptions to this rule. The rule does not
apply to (a) the testimony of experts, Tenn. R. Evid. 702., 703;
Adv. Comm. Comments, Tenn. R. Evid. 602, or to (b) admissions made
by a party opponent. Tenn. R. Evid. 803(1.2); Adv. Comm. Comments,
Tenn. R. Evid. 602.
A witness must have the requisite personal knowledge to
testify. Tenn. R. Evid. 602. On this record, it is difficult to
decipher whether Sergeant Blakley had personal knowledge about much
of his testimony. Undoubtedly, some of his testimony came from
18 other officers, from individuals he interviewed, from what he read
in reports, and from what he heard while listening to audio tape
recordings. While ascertaining which is which is difficult,
clearly much of the testimony was hearsay, once, twice, and three
times removed. Neither Sergeant Blakley's participation in the
investigation nor his role as lead investigator permitted him to
testify to facts outside his personal knowledge.
Sergeant Blakley candidly admitted that he never talked
with the dispatcher. Yet he testified to information gleaned from
listening to the taped conversations between the undercover
officers and the dispatcher and from what he read while reviewing
"different written complaints sent in by different citizens in
Davidson County." This testimony was inadmissible.
Despite the fact that his knowledge of the operation of
the escort services was based primarily upon hearsay, Sergeant
Blakley testified as to the operations, the role of the dispatcher,
and the questions asked by the dispatcher. He testified regarding
the lease and purpose of an apartment and visitors to the apartment
despite his lack of personal knowledge.
Defense counsel should have challenged Sergeant Blakley's
testimony because of his lack of personal knowledge. At the least,
counsel should have voir dired the witness to ascertain which, if
any, information was based on personal knowledge and which was
obtained from other sources. Counsel's failure to do so resulted
in the admission of highly prejudicial, largely inadmissible
testimony.
Additionally, although Sergeant Blakley was not qualified
as an expert witness, he was permitted to express his opinion
19 regarding the nature of the escort service business. The following
colloquy took place during Blakley's direct examination:
Q. During your investigation did you learn how these operations [escort services] worked?
A. Yes, sir. During the course of the operations or this investigation in the preliminary stages we did contact various sources throughout Davidson County and also were reviewing different written complaints sent in by different citizens in Davidson County.
In reading these reports and checking and verifying this information, it was obvious to us that most if not all of these listed escort services were involved in prostitution.
Q. How did you arrive at that?
A. Okay. The main point of it was -- is that we had several irate wives who were calling and wanting to know what different businesses were, and when they called them to check on their credit card receipts were given vague answers and hung up on. We also talked to various individuals who at one time or another had worked for some of these escort services as escorts, and they had explained to us the terminology and the methodology of the escort service business.
MR. GALBREATH: I'm going to object to the hearsay there, Your Honor.
THE COURT: Sustain the objection.
Opinion testimony is generally limited to witnesses who
qualify as experts in the subject matter of their respective
testimony. Tenn. R. Evid. 702. On occasion, lay witnesses may
express opinions when certain prerequisites are established. Tenn.
R. Evid. 701. Lay opinion, however, is fairly circumscribed. As
the Advisory Commission to the Tennessee Rules of Evidence
commented:
20 The rule rather specifically circumscribes the area where a lay witness can testify to opinions as opposed to facts. The Commission believed that the instances would be
rare where a witness could not convey thoughts to the jury by enumerating facts, leaving it to the jurors to draw inferences.
Add. Comm'n Comments, Tenn. R. Evid. 701.
Before a lay witness may express an opinion or inference,
the party presenting the witness must establish:
a) the witness has "personal knowledge" of the facts or
subject matter that forms the basis for the opinion or inference,
Tenn. R. Evid. 602;
b) the opinion or inference to be expressed by the
witness does not require the knowledge or skills of an expert,
Tenn. R. Evid. 701(a)(1);
c) the witness cannot readily and with equal accuracy
relate what has been perceived without expressing it in the form of
an opinion or inference, Tenn. R. Evid. 701(a)(2); and
d) the opinion or inference to be expressed by the
witness will not mislead the trier of fact to the prejudice of the
adverse party, Tenn. R. Evid. 701(a)(3).
In this case, the state did not attempt to have Sergeant
Blakley qualified as an expert in the field of prostitution. Based
on the testimony elicited from him, it is doubtful that he
possessed the training, knowledge, education, or experience to
qualify as an expert. Consequently, Sergeant Blakley should not
have been permitted to express the opinion that "most if not all of
these listed escort services were involved in prostitution" unless
that opinion was proper for expression by a lay witness and unless
the state established the prerequisites for lay opinion. We find
that neither condition required for the admission of lay testimony
21 was present in this case. Trial counsel again failed to object or
to raise the absence of the required conditions, thereby allowing
the admission of prejudicial, inadmissible, crucial evidence.
In addition to inappropriate hearsay and opinion
testimony, Sergeant Blakley testified to alleged criminal conduct
for which appellant was never charged. Sergeant Blakley was asked
to detail the sting operations his department conducted. He
testified:
A. We ran two separate operations in August and September of 1990. These operations were done to further our probable cause to issue search warrants, which we subsequently issued. At that time we did call these numbers listed to the R & C Enterprises, and at that time did talk with [the] dispatchers.
And I believe in September of 1990 our officers asked for show dates, and the dispatcher at 918 Shelby when we asked for this service directly, she said that she had two girls --
MR. GALBREATH: Objection again, Your Honor, hearsay.
THE COURT: This is when?
THE WITNESS: September of 1990.
. . .
THE COURT: Overrule the objection.
Q. Go ahead, Sergeant.
A. The undercover officers were advised that two girls were available but they couldn't get them both together. Subsequently, later -- a few minutes later we called back to another number in that list of phone numbers, and at that time we talked to the same female dispatcher or at least the voice appeared to be the same.
22 Our undercover asked for, again, a show date, two girls. At that time the dispatcher told them you have already called one time and we're trying to get you two girls; we just can't get them together right now. And he said well, I just thought I called another number. And she said no, we have all thirty-nine lines running in here.
Q. And this was to 918 Shelby Avenue --
Q. -- -- dispatcher, owned and operated by this defendant?
Q. Go ahead.
A. Then I believe it was on the 9th of October, 1990, we again called several of the listed numbers to R & C Enterprises. At that time our undercover officers asked for a sexual preference of half and half.
At that time the dispatcher linked our undercover officer with a female named Vanessa. At that time the officer advised Vanessa to come to the motel. She came to the motel. She quoted what she would perform and the amount of money.
At that time the undercover officer under our direction told the girl that he did not want to go through with it, he was married and before any money changed hands or anything like that we dismissed the girl. She left. At that time surveillance officers who were placed outside this location followed Vanessa back to 308 Plus Park Boulevard.
Q. Was it your department's plan to not go through with the sexual act as it turned out? Was that what you all were planning on doing?
A. That's correct. All we wanted was to find out if in fact these girls were offering sexual favors and if they were charging money for this.
Q. And did these girls offer sexual favors?
A. Yes, sir, they did.
23 This evidence, elicited during Sergeant Blakley direct
examination, clearly violated Rule 404(b), which provides:
Other Crimes, Wrongs, or Acts.-- Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity with the character trait. It may, however, be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury's presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence; and
(3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).
Through discovery, defense counsel should have known that
this evidence was available to the state and should have requested
a jury-out hearing to determine its admissibility. Even if the
state has asserted that some legitimate purpose for the
introduction of the other crimes evidence, the court would still be
required to balance the probativeness with the danger of unfair
prejudice arising from admission. Given the nature and timing of
this other crimes evidence, its admissibility is suspect.
The record establishes that the representation of trial
counsel was deficient in the numerous respects that we have
24 detailed.21 Counsel's services fall far below "the range of
competence demanded of attorneys in criminal cases." State v.
Melson, 772 S.W.2d 417, 419 (Tenn. 1989). Therefore, appellant has
satisfied the first prong of the Strickland test. To establish the
prejudice prong, appellant must demonstrate that "there [was] a
reasonable probability that, but for counsel's unprofessional
errors, the result of the [trial] would have been different."
Strickland v. Washington, 466 U.S. 694 (1984). A "reasonable
probability" is defined as "a probability sufficient to undermine
confidence in the outcome." Id.
The sheer volume of inadmissible, prejudicial evidence
introduced at this trial is more than sufficient to undermine our
confidence in the outcome. Indeed, we have difficulty imagining
this trial without all the inadmissible evidence. Virtually all of
Sergeant Blakley's testimony was based on hearsay. At best, its
relevance was marginal. His opinions should have been excluded.
Tenn. R. Evid. 701. The evidence of other crimes occurring more
than a year earlier should have been subjected to Rule 404's
21 Appellant also argues that trial counsel's failure to request a jury instruction on the possible sentence in this case constituted ineffective assistance of counsel. The flaw in this argument is that the only offense submitted to the jury was the promoting of prostitution. Consequently, the only possible punishment was the punishment prescribed for this particular offense. An instruction on the possible punishment for an offense is only helpful when the evidence adduced at trial supports an instruction on one or more lesser included offenses. If the jury finds that the accused is guilty, it may also feel that the harsh punishment for the principal offense is inappropriate. Thus, the jury, having been advised of the punishment for the lesser included offenses, may return a verdict of guilt for a lesser included offense because it feels the punishment is more appropriate to punish the criminal conduct. Conversely, if the trial court finds, as here, that the principal offense is the only crime supported by the record, an instruction on the possible sentence for the offense will not benefit the accused. Of course, this court is not unmindful of the potential argument that a jury may acquit an accused if it feels the only punishment for the offense is too harsh for the accused's criminal conduct. Such a scenario is highly unlikely. The failure of trial counsel to make such a request did not prejudice appellant in this case.
25 precautionary tests. Agent McGaughy's testimony regarding Swartz's
identification of appellant as "her boss" was hearsay. Swartz' s
and Ashworth's guilty pleas were irrelevant and highly prejudicial.
The description of these women's activities with Jimmy Hester, but
for the inadmissible hearsay which connected them to appellant, was
only tangentially relevant. The detailed history of prostitution
in Brentwood was not connected to appellant and should not have
been admitted. Yet counsel neglected to challenge most all of this
evidence.
When this unchallenged inadmissible evidence is compared
with the remaining evidence, it becomes apparent that counsel's
deficient performance prejudiced appellant. Absent the
inadmissible evidence, the proof in appellant's case would have
been highly circumstantial and could easily have yielded an
acquittal.
Therefore, we conclude that counsel's numerous
deficiencies affected the outcome of this trial. This case tried
with competent counsel would not have resembled the case before us.
Counsel's ineffectiveness deprived appellant of a fair trial.
Catherine Ward's conviction is reversed. The case is
remanded to the trial court for a new trial.
___________________________________ Penny J. White, Judge
CONCUR:
26 (See Separate Dissenting Opinion) Joe B. Jones, Judge
___________________________________ Gary R. Wade, Judge