State v. Donnie Johnson

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

MARCH SESSION , 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9707-CC-00261 )

Appellee, )

)

) BENTON COUNTY

VS. )

) HON. JULIAN P. GUINN DON NIE ALF RED JOH NSO N, ) JUDGE )

Appe llant. ) (Direct Appeal - Failure to Appear)

FOR THE APPELLANT: FOR THE APPELLEE:

RAYMOND L. IVEY JOHN KNOX WALKUP P. O. Box 229 Attorney General and Reporter Huntingdon, TN 38344 MARVIN E. CLEMENTS, JR.

Assistant Attorney General 425 Cordell Hull Builiding, 2nd Floor Nashville, TN 37243-0493

ROBERT RADFORD

District Attorney General P. O. Box 686

Huntingdon, TN 38344

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

On Octob er 17, 19 96, a Be nton C ounty jury found Appella nt, Donnie Alfred Johnson, guilty of failure to appear, driving under the influen ce of an in toxicant, possession of a controlled substance with intent to deliver or sell, and possession of unlawful drug paraphernalia. The trial court sentenced Appellant to eleven months and twenty-nine days (all but six months suspend ed) for failure to appe ar, to eleven mo nths and twe nty-nine days for driving under the influence of an intoxicant, to one year as a Range I standard offender for posse ssion of a controlled subs tance with inte nt to de liver or se ll, and to eleven months and twenty-nine days for possession of drug paraphernalia. The last three sentences were ordered to be run concu rrently to ea ch othe r and co nsecu tive to the six months for failure to app ear, for an ag grega te sen tence of one year an d six months incarc eration . Appe llant ap peals from those convictions, raising several issues:

1) whether the trial court erred in refusing to suppress the evidence found by a police officer who stopped Appellant outside of the officer’s jurisdiction;

2) wheth er the tr ial cou rt erred in refusing to instruct the jury as to the law regarding police jurisdiction;

3) wheth er the tr ial cou rt erred in allowing the introduction of marijuana seized from Ap pellant into eviden ce de spite th e State ’s failure to prove a cha in of custody;

4) whether the trial court erred in upholding the jury verdict for possession of drug paraphernalia despite the fact the paraphernalia was not introdu ced into evidence.

After a careful review of the record, we affirm the judgment of the trial court.

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FACTS

On Septem ber 10, 1995, early in the m orning, O fficer Mark Harbiso n, a member of the New Johnsonville Police Depa rtment, fo llowed a v ehicle into Benton Coun ty. After obtaining the license number of the vehicle, which he followed due to a suspicion that the driver was driving under the influence of an intoxicant, Office r Harb ison in formed the Benton County law enforcement agency about that vehicle. H e then turned around to return to Hump hreys Cou nty.

As Officer Harbison approached the bridge from the Benton County side of the river, he observe d a black Ca mero traveling ve ry fast toward him. Officer Harbison used his radar to clock the Camero and observed that the Camero was traveling at 85 miles per hour in a 40 mile per hour zone. Officer Harbison turned his car around and after the Camero passed him, turned on his blue lights and stopped the speeding vehicle. Appellant was the driver of the Camero.

Appellant staggered out of the car and had to support himself with his car in order to stand. O fficer Harbison no ted an odo r of alcohol o n App ellant’s person. Harbiso n notified th e Bento n Cou nty She riff’s Depa rtment that he had stopped a car w ithin tha t depa rtmen t’s jurisdiction. Harbison did not administer any field sobriety tests on A ppellant, and searched Appellant’s car only to check for weapons. As he checked for weapons, he noticed some rolling papers in the car. He took the papers ou t of the car and plac ed them o n top of the car.

Depu ty Denn is Mess er and R eserve O fficer Jim Verner of the Benton Coun ty Sheriff’s Department soon arrived on the scene. Messer observed that

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Appellant had a noticeable odor of alcoholic beverage on his breath, his speech was slurred, his eyes bloodshot, and he was unsteady on his feet. Acco rdingly, Depu ty Messer plac ed Appe llant under arrest for driving under the influence. Officer Verner searched Appellant, finding in Appellant’s boot, a plastic bag which contained five small baggies of marijuana.

The seized evidence was turned over to Messer, who placed the evidence in an envelop e and th en into a lo cker in the Sheriff’s D epartm ent. The evidence was transferred to the crime lab, though the means of the transfer remains unclear. Lab tests confirmed that the su bstanc e seized from Ap pellant wa s 33.3 grams of marijuana.

I. POLICE JURISDICTION

Appellant raises two issues pertaining to the jurisdiction of the law enforcement officer who initially stopped him. These issues are governed by Tennessee Code An notated § 6-54-301 which provides:

The police autho rity of all inc orpor ated to wns a nd citie s shall extend to a distance of one (1) mile from the lawful corporate limits the reof, for the su ppres sion o f all disord erly acts and practic es forbidden by the general laws of the sta te; prov ided, th at suc h jurisd iction of an incorporated town or city shall not be thereby extended beyond the limits of the county in which any part of such town is situated, or so as to come within one (1) mile of any other incorp orated town o r city.

The State concedes that Officer Harbison was within the jurisdiction of the Benton Coun ty Sheriff’s D epartm ent whe n he stop ped Ap pellant.

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A. ADMISSION OF EVIDENCE

Initially Appellant contends that the trial cou rt erred in den ying his motion to suppress the drug paraphernalia found by Officer H arbison . He argu es that, since Officer Harbison was outside of his jurisdiction, the stop was illegal and so too the sear ch. In State v. Johnson the Tennessee Supreme Court held in a similar situation tha t a police officer who arrested the defendant in that case was authorized to make the arrest despite being outside the jurisdiction of his law enforcement agency because the arrest was one a private citizen is authorized to make. State v. Johnson, 661 S.W.2d 854, 859 (Tenn. 1983). Tennessee Code Annotated § 40-7-109 provides that: “(A) A p rivate person m ay arrest anothe r:

(1) For a public offense committed in the arresting person’s presence;

(2) When the person arrested has committed a felony, although not in the arresting person’s presence; or

(3) W hen a felony has been committed, and the arresting person has reason able cau se to belie ve that the person arrested comm itted it.”

In the matter sub judice, Officer Harbison observed Appellant speeding at an exces sive rate. As a private citizen, Harbison was authorized to arrest Appe llant. As this Court concluded in State v. Durham, a “police officer does not give up the right to a ct as a private citizen w hen h e is off d uty or o ut of his jurisdiction.” State v. Durham, C.C.A.No. 01C01-9503-CC-00056, Putnam County (Tenn. Crim . App., Nash ville, No vemb er 16, 1 995). A s we c onclu ded in Durham, we find here that Appellant was lawfully arrested by Harbison even though the arrest was made outside of Harbison’s jurisdiction. As we stated in Durham, when an officer makes such an arrest, the officer does so as a private citizen, and acts a t the offic er’s own peril. However, it is good public policy to encourage

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law enforcement officers to stop drivers who appear to be intoxicated and who may be endangering themselves and the public regardless of where the officer observe s the imp aired driving . This issu e is withou t merit.

B. JURY INSTRUCTION

Appellant further argues that the trial court erred in refusing to instruct the jury regarding the provision of Tennessee Code Annotated § 6-54-301 . However, having determined that the arrest by Officer Harbison was legally justified, the trial court acte d within its dis cretion in re fusing to charg e the ju ry conc erning this law. The question of whether to admit the evidence was a legal question for the trial court; onc e the cou rt determ ined that th e eviden ce sho uld be ad mitted, instructing the jury r egard ing this statute would have am ounted to pu tting before the jury irreleva nt and p otentially m isleading law. This issue is with out me rit.

II. CHAIN OF CUSTODY

Appellant argues that the trial court erred in allowing marijuana seized from Appellant’s person followin g his arrest to be introduced into evidence, because the State failed to establish a reliable chain of custody for the contraband evidence. Appellant failed to object to the introduction of this evidence at trial; the failure to object at trial results in a waiver of the alleged error. Tenn. R. App. P. 36 (a). Further, the question of whether the requisite chain of possession has been sufficie ntly established to justify admission of an exhibit is a matter committed to the discretion of the trial judge and his determination will not be overturned in the a bsen ce of a clearly mistaken exercise of that discre tion. State

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v. Johnson, 673 S.W.2d 877,881 (Tenn. Crim. App. 1984) (citing Ritter v. State , 3 Tenn. Crim. App. 372, 462 S.W.2d 247 (1970)). In the matter sub judice, Depu ty Messer testified that he placed the evidence in a locker at th e she riff’s departm ent. Ms. Betty Sheriff, of the T enne ssee Bure au of In vestiga tion’s regional crime laboratory, testified the she received the evidence in a sealed envelope delivered by Deputy Chris Rogers of the Benton County Sheriff’s Depa rtment. After analysis the evidence was returned to the Benton Co unty Sher iff’s Depa rtment. Nothing in the evide nce su ggests record ta mperin g. The trial court did not abuse its discretion in determining that a sufficient chain of custod y had be en esta blished. T his issue is without m erit.

III. INTRODUCTION OF EVIDENCE

Finally, Appellant contests his conviction for drug paraphernalia, arguing that since the actual paraphernalia was not introduced his conviction should not be allowed to stand. When an appellant challenges the sufficiency of the evidence, this Court is obliged to review that challenge according to certa in well- settled principles. A verdict of gu ilty by the jury, approved by the trial judge, accredits the testimon y of the Sta te’s witnes ses an d resolve s all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (T enn. 1 992). A lthoug h an a ccus ed is origina lly cloaked with a presumption of innocence, a jury verdict removes this presumption and re place s it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to demo nstrate the insufficie ncy of the convicting evidenc e. Id. On ap peal, “the [S]tate is entitled to the stronge st legitim ate view of the e videnc e as w ell as all

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reaso nable and le gitimate in ference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have fo und the acc used guilty of every element of the offens e beyon d a reas onable doubt. Harris , 839 S.W.2d 54, 75; Jackson v. Virgin ia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our eva luation o f the co nvicting eviden ce, this Cour t is precluded from reweighing or recons idering the evidenc e. State v. Morgan, 929 S.W .2d 380 , 383 (T enn. C rim. App . 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences “for those drawn by the trier of fact from circumstantial evidence.” Id. at 779. Finally, the Tennessee Rules of Appellate Procedure, Rule 13(e) provides, “finding s of gu ilt in criminal actions wheth er by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact beyo nd a rea sonab le doub t.” See also State v. Mathews, 805 S.W.2d at 780.

In the matter sub judice, the State presented proof, through the testimony of Officer Herbison, that Appellant had rolling papers in his possession along w ith a quantity of marijuana. There is no evidence that Appellant also possessed legitimate materials such as tobacco for use with the papers. Under these circumstances the evidence is sufficient to sustain the conviction for possession of drug paraphernalia. See. Tenn. Code Ann. § 39-17-424-425.

Accordingly, the judgment of the trial court is affirmed.

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____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

(See Below ) JOE B. JONES, PRESIDING JUDGE

___________________________________

GARY R. WADE, JUDGE

The Hono rable J oe B. J ones died M ay 1, 19 98, an d did not particip ate in this Opinion. We acknowledge his faithful service to this Court, both as a member of the Court and as its Presiding Judge.