State v. Vernon Love

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 21, 1999
• Docket: 02C01-9801-CC-00011
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 1999 SESSION FILED April 21, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 02C01-9801-CC-00011 Appellee, ) ) CARROLL COUNTY VS. ) ) HON. JULIAN P. GUINN, VERNON LOVE (aka Vernale Love), ) JUDGE ) Appellant. ) (Sale of a Controlled Substance)

FOR THE APPELLANT: FOR THE APPELLEE:

RAMSDALE O’DeNEAL JOHN KNOX WALKUP 118 E. Baltimore St. Attorney General & Reporter Jackson, TN 38301 ELIZABETH T. RYAN Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493

ROBERT RADFORD District Attorney General

ELEANOR CAHILL Asst. District Attorney General 111 Church St. Huntingdon, TN 38344

OPINION FILED:

AFFIRMED

JOHN H. PEAY, Judge OPINION

The defendant was convicted by a jury of two counts of selling a controlled

substance. The trial court sentenced the defendant as a multiple offender to a term of

eight years on each count to run concurrently and to be served in the Tennessee

Department of Correction. The defendant’s subsequent motion for a new trial was denied

by the trial court. The defendant now appeals and presents two issues for our review:

1. whether the trial court erred in not overturning the jury verdict in that the evidence was insufficient to warrant a conviction; and

2. whether the trial court erred in not conducting a hearing on the issue of newly discovered evidence raised in the defendant’s motion for a new trial.

After a review of the record and applicable law, we affirm the judgment of

the trial court.

On January 17, 1997, an undercover operative working with the 24th

Judicial Drug Task Force notified the director of the task force, Steve Lee, of a potential

drug transaction. Pursuant to an established routine, the operative, Sylvester Island, met

with Mr. Lee at the Carroll County Airport where he was searched, fitted with a body

transmitter, and given fifty dollars in “buy money.” Mr. Island then returned to the

apartment obtained by the drug task force for this assignment. Mr. Island testified that

he paged the defendant’s beeper and the defendant responded by paging Mr. Island’s

beeper with the message that he would arrive at the apartment in thirty to forty-five

minutes. The defendant later arrived at Mr. Island’s apartment and sold Mr. Island fifty

dollars of crack cocaine. Mr. Island put the cocaine in a plastic bag, returned to the

airport, and gave the cocaine to Mr. Lee after initialing and dating the bag. Mr. Island

was monitored by the drug task force throughout every transaction via the body

2 transmitter. The entire transaction was also recorded on an audio tape. At trial, Mr. Lee

identified the voice on the audio tape selling cocaine to Mr. Island as the defendant’s

voice.1 Additionally, at trial Mr. Island identified the defendant as the person from whom

he bought the cocaine on January 17, 1997.

On January 18, 1997, Mr. Island notified Mr. Lee of a potential drug

transaction with Terrence Love.2 As before, Mr. Island was searched, fitted with a body

transmitter, and given fifty dollars to buy cocaine. According to Mr. Island, while he was

waiting for Terrence Love, the defendant arrived at Mr. Island’s apartment unannounced.

Mr. Island purchased fifty dollars worth of cocaine from both Terrence Love and the

defendant. After the two men left, Mr. Island placed the cocaine from each transaction

in separate bags and drove to meet Mr. Lee at the airport. Mr. Island initialed and dated

the bags and gave them to Mr. Lee. At trial, Mr. Lee and Mr. Island identified the

defendant’s voice on the audio tape of this transaction. Mr. Island also made an in-court

identification of the defendant.

The defendant now contends that the trial court erred in not overturning the

jury verdict in that the evidence was insufficient to support his convictions. Specifically,

the defendant argues that there is no evidence in the record that the trial court

considered the evidence as the thirteenth juror since the trial court did not conduct a

hearing on the defendant’s motion for a new trial. However, Rule 33 of the Tennessee

Rules of Criminal Procedure does not require a trial court to conduct a hearing on a

motion for a new trial. Tenn. R. Crim. P. 33. In addition, as sufficiency of the evidence

1 Mr. Lee said he was fam iliar with the defendant’s voice because the defendant had visited Mr. Island previously while Mr. Island was living in another housing project on a different undercover assignment that Mr. Lee had previously surveilled. Mr. Lee further testified that the defendant had a “very distinctive voice.”

2 The re cord is un clear as to whethe r this ma n’s nam e is Den nis Love or Terre nce Lo ve. However, the testimony at trial indicated that he is the defendant’s brother.

3 was an issue in the defendant’s motion for a new trial and the trial court subsequently

denied that motion, it is clear the trial court considered the evidence as the thirteenth

juror.3 In light of the foregoing, the defendant’s contention is without merit.

The defendant next contends that the trial court erred in not conducting a

hearing on the issue of newly discovered evidence raised in the defendant’s motion for

a new trial. The defendant claims that new evidence exists that would support his

allegation that the voice on the audio tapes of the transactions was not his voice.

However, the defendant failed to file any affidavits in support of this contention. Tenn.

R. Crim. P. 33(c). As such, there is no evidence in the record that supports this

argument.

It is the defendant’s duty to prepare an adequate record in order to allow

a meaningful review on appeal. T.R.A.P. 24(b); State v. Bunch, 646 S.W.2d 158, 160

(Tenn. 1983); State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). When

no evidence is preserved in the record for review, we are precluded from considering the

issue. Roberts, 755 S.W.2d at 836. As there is no evidence in the record regarding

newly discovered evidence, we cannot review this issue.

Accordingly, we affirm the trial court’s denial of the defendant’s motion for

a new trial.

______________________________ JOHN H. PEAY, Judge

3 The trial court’s order specifically stated that after considering “the motion for a new trial of the defendant, the statement of counsel and . . . the entire record . . . [this] court is of the opinion that the motion is not well tak en.”

4 CONCUR:

_________________________________ JOE G. RILEY, Judge

_________________________________ JAMES C. BEASLEY, SR., Special Judge