State v. Randy Joy

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED NOVEMBER 1997 SESSION November 25, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9705-CC-00183 Appellee, ) ) HARDEMAN COUNTY VS. ) ) HON. JON KERRY BLACKWOOD, RANDY JOY, ) JUDGE ) Appellant. ) (Delivery of Cocaine)

FOR THE APPELLANT: FOR THE APPELLEE:

JEANNIE KAESS (At Trial) JOHN KNOX WALKUP Assistant District Public Defender Attorney General and Reporter P. O. Box 700 Somerville, TN 38068 KENNETH W. RUCKER Assistant Attorney General C. MICHAEL ROBBINS (On Appeal) Cordell Hull Bldg., 2nd Floor 3074 East Street 425 5th Avenue, North Memphis, TN 38128 Nashville, TN 37243-0493

ELIZABETH T. RICE District Attorney General

JERRY W. NORWOOD Assistant District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The defendant, Randy Joy, was convicted by a Hardeman County jury of

delivering cocaine over 0.5 grams, a Class B felony. Defendant was sentenced as

a Range I, Standard Offender, to a term of eleven (11) years in the Tennessee

Department of Correction and fined in the amount of $5,000. Defendant presents

the following issues for our review:

(1) whether a proper foundation was laid for the testimony of the drug analyst concerning the weight of the cocaine;

(2) whether the trial court should have admitted evidence relating to the informant’s girlfriend handling cocaine; and

(3) whether defendant’s prior drug conviction was properly admitted.

We affirm the judgment of the trial court.

FACTS

Although sufficiency of the evidence is not an issue in this appeal, a brief

recitation of the facts is appropriate. The local Drug Task Force employed a

confidential informant as a part of an undercover drug operation. The informant

arranged a narcotics transaction with the defendant. The narcotics agent gave the

informant $100 to be used in the purchase of cocaine and wired the informant.

The confidential informant met the defendant at a prearranged location. The

defendant requested the money, and the confidential informant gave him $80.

Defendant departed in his vehicle and returned approximately fifteen minutes later.

Defendant then handed the confidential informant a plastic bag containing five (5)

rocks of crack cocaine. The narcotics agent followed the informant back to his

mobile home and obtained possession of the narcotics and the recorder.

2 TESTIMONY CONCERNING WEIGHT OF COCAINE

The state presented evidence from a forensic scientist specializing in drug

identification. When the witness testified that “I weighed it . . . I determined that the

substance weighed .6 grams,” defense counsel objected. The basis of the objection

was a failure to lay a proper foundation regarding the accuracy of the measuring

instrument. The objection was overruled. Defense counsel did not cross-examine

the witness.

Defense counsel has not cited nor have we discovered any case requiring

that a forensic scientist testify as to the calibration and accuracy of a weighing

instrument prior to being allowed to testify as to the weight of a particular substance.

Tenn. R. Evid. 705 provides that experts may express opinions and give reasons

without the prior disclosure of the underlying facts or data, unless required by the

court. The rule further provides that the expert may be required to disclose the

underlying facts or data upon cross-examination. Defense counsel chose not to

cross-examine the witness concerning the weighing instrument.

Defendant primarily relies upon State v. Sensing, 843 S.W.2d 412 (Tenn.

1992), which established certain minimal requirements relating to the admissibility

of the results of a breath testing device. Sensing is distinguishable. Police officers

are not recognized as experts on blood alcohol concentration or the manner in

which certain instruments perform this measurement. The forensic scientist who

determined the weight of this controlled substance was recognized as an expert

witness. As such, her testimony is controlled by the law relating to expert

witnesses. Certainly, defense counsel was free to cross-examine the witness

concerning the accuracy of the weighing instrument. However, we find no reason

to extend Sensing to forensic scientists who testify concerning the weight of a

particular substance.

This issue is without merit.

3 BIAS OF THE INFORMANT

The defense called as a witness an officer who had worked with the

informant. The defense endeavored to introduce a videotape of a transaction in an

unrelated case. Defendant contends that the tape shows the informant’s girlfriend

handling cocaine during a transaction. Defense counsel contends this is relevant

to show the bias of the informant toward the state in order to prevent the

prosecution of his girlfriend for handling the cocaine. The trial court disallowed the

testimony.

Certainly, evidence of bias of a witness is relevant and admissible. Tenn. R.

Evid. 616; State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App. 1996).

However, no party may examine a witness upon irrelevant matters. Tenn. R. Evid.

402. The propriety, scope, manner and control of the examination of witnesses is

a matter within the discretion of the trial court, subject to appellate review on an

abuse of discretion standard. State v. Caughron, 855 S.W.2d 526, 540 (Tenn.

1993), cert. denied 510 U.S. 979, 114 S.Ct. 475, 126 L.Ed. 2d 426 (1993).

We find no abuse of discretion by the trial court in this instance. There was

no showing that the drugs allegedly handled by the girlfriend were not properly

handed over to authorities. Defendant simply contended she did not have the

authority to handle the drugs, and her handling of the drugs would be a criminal

offense. We fail to see how this testimony would have shown bias on the part of the

informant. At most, the failure to admit such evidence was harmless error. Tenn.

R. App. P. 36(b).

PRIOR CONVICTIONS

Prior to defendant’s testimony, the trial court ruled that the defendant could

not be impeached by a prior conviction for the sale of cocaine. During defendant’s

direct examination, he was asked whether he delivered the cocaine to the informant.

4 He remarked, “I don’t do drugs; I don’t sell drugs.” Defendant further stated on

three other occasions that he did not sell drugs. The prosecuting attorney secured

permission of the trial court at a bench conference to ask about the prior conviction

in light of this testimony. The trial court found that the defendant “made a blanket

statement that he doesn’t sell drugs” and opened the door for admission of the prior

drug conviction. Upon cross-examination, the prosecuting attorney asked the

defendant about the prior drug conviction.

We conclude that the defendant’s testimony opened the door to the state’s

cross-examination about the previous drug conviction. See State v. Bray, 669

S.W.2d 684, 687 (Tenn. Crim. App. 1983). In fact, the defendant stated on four

separate occasions that he did not sell drugs. This clearly left the implication that

he had never been involved in the sale of drugs. The state had a right to challenge

the implication left with the jury. The trial court did not abuse its discretion in

allowing the introduction of this evidence.

CONCLUSION

The judgment of the trial court is affirmed.

JOE G. RILEY, JUDGE

5 CONCUR:

GARY R. WADE, JUDGE

DAVID G. HAYES, JUDGE