IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT KNOXVILLE September 29, 1999
Cecil Crowson, Jr.
JULY SESSION, 1999 Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808-CR-00294 )
Appellee, )
)
) MCMINN COUNTY
VS. )
) HON. CARROLL L. ROSS, GLEN PORTER, ) JUDGE )
Appe llant. ) (Sale of Cocaine)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF MCMINN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS PAUL G. SUMMERS 46 North Third Street Attorney General and Reporter Suite 719 Memphis, TN 38103 TODD R. KELLEY (On A ppea l) Assistant Attorney General 425 Fifth Avenu e North
CHARLES M. CORN Nashville, TN 37243 District Public Defender JERRY N. ESTES
THOMAS E. KIMBALL District Attorney General Assistant Public Defender Washington Avenue 110 ½ Washington Avenue Athens, TN 37303 Athens, TN 37303
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES, JUDGE
OPINION
This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appe llate Procedure. The Defendant, Glen Porter, was indicted for the unlawful sale of more than .5 grams of cocaine and fo r poss essio n with th e inten t to sell more than .5 grams of cocaine, in violation of Tennessee Code Annotated § 39- 17-417. A McMinn County jury found the Defe ndan t guilty of th e offen se of s ale of more than .5 grams of schedule II cocaine, though the Judgment reflects a conviction for the sale of less than .5 grams of schedule II cocaine.1 The jury then found the Defendant not guilty of possession with the intent to sell more than .5 grams of cocaine, but convicted the Defendant of the lesser included offense of simple possession of cocaine. The Defendant presents three issues for review: (1) wheth er the evid ence is s ufficient to sustain the convictions; (2) whether the trial judge erred by denying the Defendant’s request for a continuance; and (3) whether the trial judge erred by permitting improper argument by the prosecution. We find these issues to be without merit and affirm the judgm ent of the tria l court.
In August of 1997, Special Agent James Richardson of the Alcohol Beverage Commission was contacted by Detective Bill Matthews of the Athens Police Departm ent about dru g problems occurring in Athens, Tennessee. On August 29, 1997, Richardson received $100.00 from Detective Matthews, which
1 While the transcript of the proceedings reflects that the jury returned a verdict of guilty of sale of more than .5 grams of schedule II cocaine, which is a Class B felony, the Judgment indicates that the Defendant was found guilty of sale of less than .5 grams of cocaine, which is a Class C felony. The Defendant was sentenced to ten years, which is the maximum sentence for a Class C felony under Range II, multiple offender, but which is below the minimum for a Class B felony under Range II. While this discrepancy does not affect the analysis of the issues presented, the case must be remanded for clarification of the record.
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he was to use to attempt to purchase crack cocaine from any willing seller on Kilgore Street in Athens. Richardson drove to Kilgore Street and observed the Defendant sitting on the front porch at 520 Kilg ore Stree t. Richard son po inted to the Defendant, who approached the vehicle and said, “What you need?” Richardson replied, “Can you do m e a hun dred?”, w hich he e xplained mean t a hundred dollars of crack co caine. The D efendant the n told Richards on to drive around the block, which he did. When he returned, Richardson exchanged the $100.00 for five pieces of what he believed to be crack cocaine. Richardson turned the substance over to the TBI crime lab, which identified it as .6 grams of cocaine base, or crack co caine.
Richardson was equippe d with a n aud io tape record er durin g this transaction, but due to damage to the recorder, only a portion of the transaction was re corde d. W hile Ric hards on’s voice is clearly heard on the tape, the other person is just making noises which the prosecution described in closing argument as “kind of grunting.” Richa rdson says on the tap e that he is going to a ttempt to buy drugs from a black m ale called “Bink”; then at trial he identified the Defen dant, Glen Porter, as the individual called “Bink” from whom he purchased the drug s.
After the purch ase, D etective Gary M iller with th e McM inn Co unty S heriff’s Department, Detective Bill Matthews with the Athens Police Department, and another officer named D aniel Denton approach ed the residen ce at 520 K ilgore Street. Detective Miller stated that three people were on the front porch when they approached. The Defendant was sitting in a chair on the right side of the porch. Detective Miller secured the Defendant, searched him, and removed
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money found on him. Beside the Defendant’s foot Miller found a small fuse container which contained a substance Miller believed to be cocaine. Miller also saw a bucke t next to th e Def enda nt whic h con tained a sm all con tainer w ith a substance believed to be cocaine inside. After the Defendant was secured, Miller turned the evidence and money over to Detective Matthews.
Detective Matthews testified that before the purchase, he drove through the area and s aw the Defe ndan t on the porch , then re ported to Richardson that it looked like Bink , or the D efend ant, wa s the o ne wo rking o n that d ate. W hile Richardson was purchasing the cocaine, Matthews was in another car w ith Gary Miller and D aniel D enton. Matthew s did not s ee the D efenda nt walk ov er to Richa rdson ’s car, but he did see the Defendant walk away from the car, walk over to the porch, and bend over. He did not see anything after this because he had to keep d riving arou nd. After the purchase, he approached the house w ith Gary Miller and Daniel Denton. While Miller secured the Defendant and Denton secured an individual walking up towards the porch, Matthews secured two individu als who were standing out in the yard. Once everyone was secured, Miller showe d Matthe ws the co caine he had fou nd next to the Defendant in a bucket and beside the Defend ant’s foot in a fuse co ntainer. He also gave Matthews a roll of m oney w hich h e had taken from th e Def enda nt. Th e roll of money consiste d of three hundre d and s ome o dd dollars . Matthews stated that he had given Agent Rich ardson five twenties at the beginning of the transaction and that he had rec orded the se rial numbers of those five twenties. H e found five twenties with serial numbers that matched those he had recorded in the roll of money. The sub stances be lieved to be coca ine were turned over to the TBI
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crime lab, which found the substances together to be 2.7 grams of cocaine base, or crack cocaine.
The only witness for the defense was the Defendant. He testified that he went to Paul Moss’s home at 520 Kilgore Street between 10:00 and 10:30 on the morning of Augus t 29 to disc uss pa inting Mo ss’s hou se. Two othe r people were at the house besides Paul Moss. The Defendant never saw Richardso n drive up to the house, and he did not go out to any automobiles. He knows what crack cocaine is, but he did not handle any while he was there. After he had been there a while, three or four po lice officers came up to th e hou se an d sea rched all the people who were there. The police took money from the Defendant, which the Defenda nt said was m oney he ha d been sa ving from w orking . He ha d this money in his pocket on Friday because he was going to pay his parole fees and probation fees the following Tu esday, whe n he saw h is officer. The Defendant saw the officers pull som ething ou t of a buck et, but he did n ot kno w who it belonged to or what it was. He did not see the fuse container. He said the bucket was on the porch because people had been washing Moss’s cars in the past, but n o one w as was hing cars on that da y.
The Defendant said he is known by the names Brody and Glen, but he was known by the name Bink about thirty years ag o. In ass erting th at he d id not s ell any cocaine to Richardson, the Defendant stated,
you didn’t hear my voice on the tap e or noth ing. Evide ntly, if I had, he had purchased anything to me, looks like you could hear my voice saying something to him. I didn’t just go give him nothing and just leave. Quite naturally, if I sold him anything I’d be looking for something. I’d have some kind of conversation with him.
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He claimed that the re was no wa y mar ked m oney c ould h ave be en fou nd on him unless someone planted it. When asked if he had an opinion about why the officers would lie a bout him , the Defe ndant responded, “Yes, sir, one, for the simp le reason M r. Matthews ba ck in ‘90 when I first . . . went to the penitentiary, he stopped me 12 o r 13 consec utive times harassing me, but he never found any drugs on me, a nd tha t contin ued. T hat’s why I, why I think so an d why he’s ga ve him m y name in the first plac e.”
SUFFICIENCY OF THE EVIDENCE Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a re asonable d oubt.” Tenn. R . App. P. 13(e). Evidence is sufficient if, after reviewing 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 doub t. Jack son v. V irginia, 443 U.S . 307, 319 (1979); State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94). In addition, because conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evidence was insu fficient. McBe e v. State , 372 S.W.2d 173, 176 (Ten n. 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn . 1977)); State v. Tug gle, 639 S.W.2d 913, 914 (T enn. 19 82); Holt v. State, 357 S.W .2d 57, 61 (T enn. 1962 ).
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In its review of the evidence, an a ppellate court m ust afford the State “the strongest legitimate view of the evide nce as well as all rea sonab le and leg itimate inferences that may be d rawn therefrom .” Tug gle, 639 S .W .2d at 9 14 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978)). The court may not “re- weigh or re-evaluate the e vidence” in the record b elow. Evans, 838 S.W.2d at 191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court find particular conflicts in the trial testimon y, the court mus t resolve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.
To be gu ilty of the s ale of a contro lled su bstan ce, on e mu st kno wingly sell the controlled substance . Tenn. Co de Ann. § 3 9-17-417(a )(3). The e videnc e in this case overwhelmingly shows that the Defendant sold $100.00 worth of crack cocaine, which was determined to be .6 grams of crack cocaine, to Special Agent Richardson. Ther efore, th e evide nce s uppo rts a find ing tha t the D efend ant is guilty of the s ale of more than .5 grams of a schedule II controlled substance, and it also suppo rts a finding that the De fendant is guilty of the lesse r included offense of the sa le of less than .5 grams of a schedule II controlled substance. Richardson identified the Defendant in court as the person from whom he purchased the cocaine, and $100.00 in five marked twenty dollar bills was removed from the Defe ndant w hen he was se arched . The D efenda nt points out that Richardson did not describe the denominations of the $100.00 he received from Detective Matthews and that the money removed from the Defendant was not described as an amount certain or in any particular denominations. He then argues, “This leaves the proof estab lishing that a c ertain fiv e twen ty dollar bills were given to Richardson by Matthews, and later those same five twenty dollar bills were retu rned to M atthews by M iller. It is the ranke st of spec ulation to
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conclude that in the interim be tween th ese two events it was the s ame five twenty dollar bills that were being handled only by the defendant.” Instead of being the “rankest of speculation,” it is the most reasonable inference that these sam e five twenty dollar b ills were given to the Defendant by Richardson in exchange for crack cocaine, then removed from the Defendant by Detective Miller, who turned them over to Detective Matthews. Certainly, this is sufficient evidence that the Defendant is guilty of selling crack cocaine to Richardson.
The Defendant also argues that the evidence is insufficient because the voice on the aud io tape was not identified as the Defendant’s. He asserts that he denied the voice on the tape was his and that the denial was unrefuted. Howeve r, there is no clear voice to be heard on the tape. Regardless of whether the voice on the tape was identified, Richardson identified the Defendant as the person who sold him the drugs, and the marked money from the drug purchase was found on the Defendant. This is more than sufficient evidence that the Defendant is guilty of the sale of a controlled substance. Therefore, this issue has no merit.
To be guilty of simple possession of a controlled substance, one must know ingly possess the controlled substance . Tenn. Co de Ann. § 3 9-17-418(a ). Posse ssion m ay be ac tual or con structive. State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 19 91); State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987); State v. Williams, 623 S.W .2d 121, 125 (Tenn. Crim . App. 1981 ). Constructive possession occurs whe n a person knowingly has “‘the power and the intention at a given time to exercise dominion and control ove r an obje ct, either directly or through othe rs.’” Williams, 623 S.W.2d at 125 (quoting United
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States v. Craig , 522 F.2d 29 (6th Cir. 1975)). “‘In essence , constructive possession is the ability to reduce an objec t to actual posse ssion.’” Id. (quoting United States v. Martinez, 588 F.2d 49 5 (5th Cir. 1979)). In this case, cocaine totaling 2.7 gra ms w as fou nd in a fuse container by the De fenda nt’s foo t and in a plastic container in a bucket beside the Defendant on the p orch. Detective Matthews saw th e Def enda nt walk away fr om R ichard son’s car, wa lk over to the porch, and bend over, though he did not see what the Defendant was doing when he bent over. Based on this evidence, a reasonable juror could conclude that the Defendant had the ability to reduce the cocaine to actua l possession, thus the evidence was s ufficien t to con vict the Defendant of po ssessio n of coca ine.
DENIAL OF CONTINUANCE
The Defen dant as serts that the trial judg e abu sed h is discr etion in denying his motion for a continuance. On the day of trial, the Defendant asked the trial court to continue the case because the tape of the preliminary hearing was missing. Wh ile defense counsel was not present at the preliminary hearing, he argued that the Defendant recalled one of the officers testifying at the preliminary hearing that there was a videotape of the drug sale, that now the officer denied there ever bein g a video tape, an d that he n eeded a continu ance to attemp t to find the preliminary hearing tape. The trial judge commented that “normally we haven ’t been having any videotapes” in these types of cases, and that “it would be extremely rare if there was one.” He stated that the officer was present to testify as to whether there was a video tape, then den ied the motion for a continua nce.
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The granting or denial of a continuance is left to the sound discretion of the trial judge, and that decision “will not be disturbed in the absence of a clear showing of gross abuse of his discretion to the p rejudice o f the defen dant.” Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App . 1973) (citations om itted); see also State v. Meeks, 876 S.W.2d 121, 130 (Tenn. Crim. App. 1993 ). “A reversal will be o rdere d on a ccou nt of de nial of a contin uanc e only if the app ellate court is convinc ed that the comp laining pa rty did not ha ve a fair trial an d that a different result would or m ight reasonab ly have been re ached ha d there been a different disposition of the application for a continuanc e.” Baxter, 503 S.W.2d at 230.
The Defendant argues that the denial of a continuance was an abuse of discre tion because it foreclosed even the possibility of a n investiga tion to determine whether the preliminary hearing tape could be found and whether the tape contained information which could be used in cross-examining the officers. He also asserts that the trial judge abused his discretion by denying the continuance because he did not believe a videotape existed. The Defendant does not, however, show how he may have been prejudic ed because of the denial of the continuance. Therefore, the denial of the continuance is not reversible error, regardless of whether it was an abuse of discretion.
The loss of a preliminary hearing tape, in and of itself, is not prejudicial error. Wh ile Rule 5.1(a) of the T ennesse e Rules of C riminal Proced ure requires that preliminary hearing proceedings “be preserved by electron ic recordin g or its equivale nt” and “be made available for listening to by the defendant or defen dant’s counsel to the end that they may be apprised of the evidence
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introduced upon th e prelim inary exam ination,” failure to preserve that pre liminary hearing may be harmle ss error. State v. B utts, 640 S.W.2d 37, 38 (Tenn. Crim. App. 1982); see also State v. Carter, 970 S.W.2d 509, 511-12 (Tenn. Crim. App. 1997); State v. Bohanan, 745 S.W .2d 892 , 896 (T enn. C rim. App . 1987).
The Defendant has made no showing of how the missing preliminary hearing tape actually harmed him. Instead, he simp ly allege s in his b rief that if he had been allowed more time, the preliminary hearing tape might have been found, and it might have revealed that an officer testified at that hearing that there was a videotape of the drug transaction. He then argues that if this were the case, he could have used the tes timon y to cros s-exa mine the offic er durin g trial. This list of “ifs” and “m ights” d oes n ot dem onstra te that a differen t result w ould or might reasonably have been reached had there been a continuance. The evidence against the Defendant was very strong, and there is no way of determining wheth er any impe achin g testim ony ex isted without the prelim inary hearing tape. Th e Defe ndant h ad time to search for the tape while preparing his motion for a ne w trial, and he could have presented evidence of prejudice at the hearing on the mo tion for a new tria l if he ha d in fac t found the tap e and it revealed testimony about a videotape. Because the Defendant made no showing of prejudice, the de nial of a continuan ce is not reversible erro r.
IMPROPER ARGUMENT BY PROSECUTION During closing argument, the prosecutor made the following statement, which the Defen dant as serts wa s impro per argu ment:
Folks, Mr. Kimball has asked you to consider that these officers are lying. . . . But let m e tell you why this con spiracy theory that they’ve got, why you can’t even conside r it as evidence.
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They’ve introduce d not one ounce of evidence that there’s a conspiracy theory ag ainst Gle n Porter. I mean did you hear any evidence about how officers are conspiring against Glen Porter or are conspiring against drug dealers in this town?
Defense counsel objected to this statement on the ground that the prosecution was shifting the burden of proof, but the trial court overruled the objection. The prosecutor then later argued,
I can promise you that Bill Matthews had no reason to plant fake money on Glen Porter. I can promise you that Bill Matthews had no reason to plant crack cocaine on Glen Porter that wasn’t his, that just coincidentally happened to be next to him while he coinc identa lly happened to have marked money on him, and coinc identa lly happ ened to have $300 .00 in cash on him sitting next to crack co caine. Where do you think that cash came from? What do you think he had really been doing that day? How do you think he really got that $300.00? He was selling crack cocaine.
The Defen dant did n ot object to this argument at trial, but now argues that it was improper.
In determining whether statements made during closing argument constitute reversible e rror, it is neces sary to determine whethe r the statem ents were improper, and if so, whether the improper statements affected the verdict. State v. Sutton, 562 S.W .2d 820 , 823 (T enn. 19 78); Harring ton v. State , 385 S.W.2d 758, 759 (1965). Closing argument is a valuable privilege for all parties, and trial courts give the parties wide latitude in their argum ents to the jury. State v. Cauthern , 967 S.W .2d 726 , 737 (T enn. 19 98); Sutton, 562 S.W.2d at 823. Appe llate courts will not interfere with a trial court’s discretion in controlling argument of counsel unless th ere has been a n abus e of that dis cretion. State v. Pulliam, 950 S.W .2d 360, 368 (Tenn. Crim . App. 1996 ).
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W hile the parties are given wide latitude in their closing arguments, those argum ents are no t withou t limitatio n. They “must be temperate, must be predicated on evidence introduced during the trial of the case, and must be pertinent to the issu es being tried.” Russe ll v. State, 532 S.W.2d 268, 271 (Tenn. 1976). A prose cutor m ay mak e an arg umen t to the jury w hen th at argu men t is supported by evidence introduced at trial and may state an ultimate conclusion which would necessarily follow from the testimony of the prosecution witnesses. State v. Brown, 836 S.W.2d 530, 552 (Tenn. 1992) (citing State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976)). A pro secu tor ma y also a rgue th at its pro of is unrefute d or uncon tradicted. See State v. Rice, 638 S.W.2d 424, 427 (Tenn. Crim. App. 1982). A prosecutor may not, however, place his or her own credibility before the jury by stating his or her own opinions of the Defendant or the evidenc e. See Judge v. State, 539 S.W .2d 340, 345 (Tenn. Crim. App. 1976).
The Defendant complains that the prosecution improperly argued that he had presented no proof in support of his theory of the case and that this was an attempt to shift the burden of proof. The prose cution did ad dress the De fenda nt’s theory of the case by stating, “But let me tell you why this conspiracy theory that they’ve got, why you can’t even consider it as evidence. They’ve introduced not one ounce of eviden ce that the re’s a con spiracy the ory again st Glen Porter. I mean did you hear any evidence about how officers are conspiring against Glen Porter or are conspiring against drug dealers in this town?” The Defendant objected to this comment at trial, but the trial court overruled the objection. The comment was in response to argument by defense counsel and was a comment on the evidence. The effect of the statement was to argue that the State’s case
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was uncontradicted by any evidence of a police conspiracy to frame the Defen dant. Su ch an a rgume nt was p roper, an d it was no t error to allow it.
The Defendant also complains that the prosecutor improperly argued that the proof clearly showed the marked $100.00 used for the drug buy was found in the Defendant’s possession and that the prosecutor improperly inserte d his person al opinion into the arg umen t. Though he rais es the se issu es on appe al, he did not contemporaneously object to the argument when it was being made. Since he failed to object during the argument, the issue is waived. State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992); Tenn. R. App. P. 36(a). Even so, the statement that the marked $100.00 was found in the Defendant’s possession was a prope r argum ent bas ed on th e State’s case, and even though the prosecutor improperly inserted his personal opinion into the argument by “promising” the jury that the police had no reason to plant money or drugs on the Defen dant, we conclude that those statements did not affect the verdict. The evidenc e again st the De fendan t was ove rwhelm ing.
Having found all the Defendant’s issues to lack merit, the judgment of the trial court is affirme d in all re spec ts. The case is remanded, however, for clarification of whether the judgment of con viction s hould have b een fo r the sa le of more than .5 grams of a controlled substance or the sale o f less than .5 grams of a contro lled subs tance.
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DAVID H. WELLES, JUDGE
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CONCUR:
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GARY R. WADE, JUDGE
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JOE G. RILEY, JUDGE