State v. Donald Tallie

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 15, 1999
• Docket: 02C01-9807-CC-00229
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON APRIL SESSION, 1999

FILED STATE OF TENNESSEE, ) April 15, 1999 ) No. 02C01-9807-CC-00229 Appellee ) Cecil Crowson, Jr. ) CARROLL COUNTY Appellate C ourt Clerk vs. ) ) Hon. C. Creed McGinley, Judge DONALD TALLIE, ) ) (Sale of Cocaine less than .5 grams) Appellant )

For the Appellant: For the Appellee:

Guy T. Wilkinson Michael E. Moore District Public Defender Attorney General and Reporter

Billy R. Roe, Jr. J. Ross Dyer Asst. District Public Defender Assistant Attorney General 117 North Forrest Avenue Criminal Justice Division Camden, TN 38320 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493

G. Robert Radford District Attorney General

Eleanor Cahill Asst. District Attorney General Post Office Box 686 Huntingdon, TN 38344

OPINION FILED:

AFFIRMED

David G. Hayes Judge OPINION

The appellant, Donald Tallie,1 was convicted by a jury in the Carroll County

Circuit Court of one count of sale of cocaine less than .5 grams, a Class C felony,

and one count of sale of cocaine greater than .5 grams, a Class B felony. The trial

court imposed concurrent sentences of eight years for the Class C felony and

sixteen years for the Class B felony as a Range II multiple offender. The appellant’s

sole challenge on appeal is the sufficiency of the convicting evidence.

I. BACKGROUND

In conjunction with the Department of Housing and Urban Development

(HUD), the Drug Task Force for the 24th Judicial District conducted an undercover

operation by placing a confidential informant in the public housing projects in

McKenzie. Testimony relative to the appellant’s first sale established that on

December 4, 1996, Steve Lee, the director of the Drug Task Force, equipped

Sylvester Island, the confidential informant, with a concealed body transmitter which

permitted conversations to be recorded. At the designated meeting place, Island

was searched by Lee and given $100 to purchase cocaine. Island was

accompanied by his girlfriend, Jaronda Parker, who was not a drug task force agent.

Lee followed Island and Parker to their residence in the housing project in

McKenzie but remained at a distance, unable to view the transaction or see the

appellant. Island testified that he had met the appellant on December 3 at a local

“crack house” where the appellant was “selling dope.” Island stated that the

appellant called himself “Dee.” Island related that the appellant “just showed up” at

his apartment on December 4. Island went out to the appellant’s car and informed

the appellant that he wanted to buy some crack cocaine. The appellant followed

1 The appe llant w as als o cha rged in the in dictm ent u nde r the a lias, S teven Tallie .

2 Island into his apartment. The appellant then cut the “rock” into a smaller piece,

exchanged the “rock” for $100, and departed. This transaction was recorded.

Island testified that the appellant drove the same car, a black Probe SE with a tag

number 01946-D, that he had seen at the “crack house” the day before. Shortly

thereafter, Island delivered the transmitter, cocaine, and license plate number to

Lee. Forensic analysis determined the substance to be to be .3 grams of cocaine.

The second drug transaction occurred on December 5, 1996. Again, Island

was searched and equipped with a body transmitter to enable Lee to record the

transaction. This transaction also took place at Island’s residence. Previously, the

appellant had given Island his beeper number which Island used to page the

appellant. The appellant responded by coming to Island’s residence. The appellant

entered Island’s apartment, cut off a rock of crack cocaine, exchanged it for $100,

and left. Island stated that, upon this occasion, the appellant provided him with

more cocaine than in the first instance to reward him for not purchasing drugs from

the other local dealers. Island returned to meet with Lee and delivered the

transmitter and the substance purchased which was later determined to be .6 grams

of cocaine. After checking the vehicle’s registration, the black Probe was

determined to be stolen.

Island testified that he had been an informant for approximately eight years

for various federal and state agencies and was paid $100 for each “buy.” At trial,

Island testified that over ten years ago he had been convicted of forgery in Kentucky

and theft in Obion County, Tennessee. Island also testified that he had been

charged with selling a counterfeit controlled substance in 1988. Both of the

recorded transactions were played for the jury. Island identified the appellant as the

person who sold him the cocaine and identified the appellant’s voice on the tape.

The defense presented no proof. The jury returned a guilty verdict on two

3 counts of sale of cocaine.

II. SUFFICIENCY OF THE EVIDENCE

In his only issue, the appellant challenges the sufficiency of the convicting

evidence to sustain a verdict of two counts of the sale of cocaine. Specifically, the

appellant contends that the only evidence identifying him as the person selling

cocaine was the “uncollaborated [sic] testimony” of Island, a paid informant and

convicted felon. Moreover, the appellant argues that, because he did not testify,

“there was no way for the jury to compare the alleged voice of the defendant on the

tapes to the actual voice of the defendant.” Thus, he contends that “there is no way

to rationally deduce that it was the defendant on those tapes.”

A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the

sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is

entitled to the strongest legitimate view of the evidence and all reasonable or

legitimate inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d

54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368 (1993). Viewing

the evidence under these criteria, it is this court’s responsibility to affirm the

conviction if the proof was sufficient for any rational trier of fact to have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App.

P. 13(e).

4 In essence, the appellant challenges the credibility of the State’s witnesses.

A jury verdict accredits the testimony of the State’s witnesses and resolves all

conflicts in favor of the State’s theory. State v. Williams, 657 S.W.2d 405, 410

(Tenn. 1983). The weight and credibility of witnesses’ testimony are exclusively

within the province of the jury as the trier of fact. State v. Locust, 914 S.W.2d 554,

558 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). We conclude that

the evidence was sufficient to support the appellant’s convictions for each sale of

cocaine. Officer Lee monitored each transaction via a transmitter and overheard

each drug transaction. The recordings of both transactions, containing a description

of the appellant and referring to the person “Dee,” were played for the jury. Island

identified the appellant as the person who sold cocaine on both occasions and also

identified his voice on the recording as provided by Tenn. R. Evid. 901(a) and (b)(5).

Accordingly, we find the evidence presented sufficient proof from which a rational

juror could reasonably infer the appellant’s guilt beyond a reasonable doubt.

The judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Judge

5 CONCUR:

_____________________________________ JOSEPH M. TIPTON, Judge

___________________________________ L. T. LAFFERTY, Senior Judge