IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JANUARY SESSION, 1998 April 23, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9702-CR-00054 )
Appellee, )
) DAVIDSON COUNTY
V. )
)
) HON. SETH NORMAN, JUDGE WILLIE B. JACKSON, )
) (SALE OF CONTROLLED
Appe llant. ) SUBSTANCE - COCAINE)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK J. FISHBURN JOHN KNOX WALKUP 100 Thompson Lane Attorney General & Reporter Nashville, TN 37211 LISA A. NAYLOR
Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North
Nashville, TN 37243
VICTO R S. JO HNS ON, III District Attorney General
JIM MILAM
Assistant District Attorney General Washington Square
222 Second Avenue North, Suite 500 Nashville, TN 37201-1649
OPINION FILED ________________________ AFFIRMED IN PART; REVERSED IN PART THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Willie Bruce Jackson, appeals as of right from his conviction
following a jury trial in the Criminal Court of Davidson County. In the original indictme nt, Defendant was charged with seven (7) drug-related offenses committed during the period of August through October of 1993. At the conclusion of the State ’s proof, Count 2 of the indictment was dismissed. Defendant was convicted of the following drug-related offenses:
1) Sale of twen ty-six (26) grams or more of a substance containing cocaine (C ount 1);
2) Sale of twenty-six (26) grams or more of a substance containing cocaine (C ount 3);
3) Sale of .5 grams or more of a substance containing cocaine (Count 7);
4) Delivery of .5 grams or more of a substance containing cocaine (Count 8).
The jury found the Defendant not guilty of two of the named offenses in the indictment (Counts 5 and 6). The trial court sentenced the Defendant to an eight (8) year sentence for each charge, to be served concurrently in the Department of Corre ction. D efend ant pre sents the follo wing is sues in his ap peal:
1) Whether the evidence was sufficient to justify the jury’s verdict of guilt beyon d a reas onable doubt.
2) Whether the jury was prejudiced by the introduction of extraneo us legal info rmation during d eliberation s;
3) Whether the trial c ourt er red in d enying Defe ndan t’s request for a spec ial jury instructio n on the “procurin g agen t” defens e;
4) Whether the trial court erred by failing to merge counts 7 and 8 of the indictment, the sale and delivery of .5 grams or more of a substance conta ining c ocain e, in viola tion of th e Dou ble Jeopa rdy claus e of the F ifth Ame ndme nt;
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5) Whether the trial court erred in allowing inculpatory information which was not provided as discovery materials prior to trial to be admitte d into evide nce.
We reverse in part and affirm in pa rt the judgm ents of the trial court.
S UFFICIENCY OF THE EVIDENCE
Defendant states in his brief that there was no evidence introduced that he actua lly shared in the proceeds from the sale of the cocaine on any occasion. Defendant asserts that the uncorroborated testimony of an accomplice, Rodney Morris, was the only evidence that Defendant was the source of the cocaine sold on October 27, 1993, and that is insufficient to support his convictions.
When an accused challenges the sufficiency of the convicting evidence, the standard is whether, 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 reaso nable d oubt. Jackson v. Virgin ia, 443 U.S. 30 7, 319 (1979 ). On appea l, the State is entitled to the stronge st legitima te view of the evidence and all inferences therefrom. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdict of guilt removes the presumption of innocence and rep laces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdic t returned by the trier of fa ct. State v. Tug gle, 639 S.W .2d 913, 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476 (Tenn . 1973).
Questions concerning the credibility of the witnesses, the weight and value to be given the eviden ce, as well as all factual issu es raised by the evidence, are
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resolved by the trier of fact, not this c ourt. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App .), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court reweigh or reevalu ate the ev idence . Cabbage, 571 S.W.2d at 835. A jury verdict approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace, 493 S.W.2d at 476.
Joanne Schule r, Specia l Agent with the Tennessee Bureau of Investigation (“TBI”), testified that in 1993 she was as signed to the drug section o f the TB I. A confiden tial informa nt, Ron Darks, approached Schuler regarding the Defe ndan t’s drug activity. Based upon that information, Schuler began an investigation. Initially, Schuler went to 2126 Cliff Drive, the area where Darks described that Defendant lived, and saw a blue Toyota Celica, the vehicle that Darks described Defendant as driving. After confirming the initial information provided by Dark s, Schu ler met w ith Darks to set up c ontact w ith Defen dant to pu rchase cocaine from him .
Schu ler’s plan was to contact Defendant through his beeper number, 748-
7962, from a teleph one a nd tha t further arrang eme nts wo uld then be mad e. A micro cassette recorde r was se t up in advance to monitor the telephone conversation between Darks and the Defendant. On Augus t 17, 1993 , after placing the pag e to Defendant’s beeper number, the telephone rang and they were instructed to go to a telephone at a fish market in Bordeaux in Davidson County. Darks was searched for any drugs or contraband, then he and Schuler went to the fish market. After they arrived, Darks used the telephone Defendant specified and again pa ged D efenda nt. W ithin a short time, the telephone rang and Darks answered. Several minutes after that phone call, a blue Toyota Celica was seen being driven from Cliff Drive towards Schuler and Darks. This appeared to be the same Celica that Schuler observed
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earlier at 2126 Cliff Drive. Two black males were in the C elica, a nd the y parke d in the parking lot of a little mar ket on the other side of Clarks ville Highw ay. One of the men exited the car, and Darks id entified him as “Moto r.” Motor got into their car and put a sm all clear plastic b aggie with a whitish substance on the car’s console. Darks began to count out twelve hundred dollars ($1,200.00) which Schu ler had previo usly given to him. Motor then asked to be driven across the street and dropped off near a white Cutlass which was parked next to the Celica. Schuler then took the cocaine to the TBI for testing.
On August 23, 1993, Schuler and Darks went to a pay phone and placed a page to number 271-8314. The page was returned, and Schuler recorded the telephone conversation. D arks was instruc ted to return to the same telephone that they had used on August 17 at the fish market on Clarksville Highway. Schuler placed three pages, and shortly thereafter the Celica was seen being driven towards the fish market. Th e driver of the Celica parked in the lot across the street from where Schuler and Darks were parked, and a black male exited the car and entered the market. Shortly thereafter, the telephone rang and Darks was instructed to go to the market next to where the Celica was parked. After they entered the ma rket, Darks went to the back and Defendant was standing inside the door of a back room. Schuler attempted to follow Darks into the room, but Darks informed her that she was not to com e any furth er. The door closed briefly, then Darks reopened the door and asked Schuler for the money. Schuler gave Dark s one thous and dollars ($1,000.00) and then he closed the door. When the door reopened several seconds later, Schuler saw Defendant standing in essentially the same spot he had been initially and then Darks exited the back room. As soon as Schuler and Darks left the
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market and g ot into th eir vehicle, Dark s han ded S chule r anoth er clea r plastic bagg ie containing a white substance.
On September 27, 1993, Schule r placed a page to pager number 271-8314 from the phone in the parking lot of the market where their last deal had taken place. When the page was returned, Schuler identified herself as Joanne and indicated that she was calling to ge t an ounce of cocaine. Schuler identified the voice of the person who returned the pag e as De fendan t. She then drove over to the fish market across the street and waited until she saw the blue Celica arrive. Two black males were in the Celica, and they pulled up near her car. A young black male came over to Schuler’s car, and she later learne d that th is pers on wa s Rod ney M orris. M orris came to her window and she asked him how much it was. Morris said the ounce would be eleven hundred dollars ($110 0.00). A fter Sc huler g ave him the money, he gave her a baggie containing a whitish substance.
On Octob er 27, 19 93, Sch uler plann ed to purchase a quarter of an ounce of cocaine. Darks placed a call to pager number 271-8314, and Schuler monitored the call. Schuler recorded the returned phone call, and identified the voice as the Defendant’s. Darks asked “Is this Ookie or Roger,” and the De fenda nt replie d, “It’s Ookie.” Defendant advised them to stay at the same phone and that he would call back. When Defendant called back, Darks was instructed to drive to a nearby car wash and that the price of the cocaine would be two hund red seventy-five dollars ($275.00). When Schuler and Darks arrived at the car wash, there w as a b lack m ale there clean ing a b rown M ustan g. Dar ks iden tified him as Rodney Morris. After they parked in one of the bays, Morris came up to the passenger side window and confirmed the price of the cocaine. The exchange was made.
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Phillip Freeze, drug analyst for the TBI, testified that he performed a chemical analys is of the substances which Schuler turned in as evidence from the sales involving the Defendant. Freeze stated that the an alysis o f the first s amp le revealed 26.3 gram s of co caine, approximately nine-tenths of an ounce. The chemical analys is of a second sample revealed 27.3 grams o f a cocaine po wder. The third sample contained 16 grams of cocaine following a chemical analysis.
Ron ald Darks testified that he served as a confidential informant t o the TBI during their investigation of the Defendant. He stated that he knew the Defendant as “Ookie.” Darks supplied the TBI with the in forma tion su rroun ding D efend ant’s address and the vehicles he drove. On August 17, 1993, he and Schuler used the pager number Defendant had given to him and the Defendant returned their page. Defendant told Darks to meet him at a fish market on Clarksville Highway. After Darks arrived there, he called Defendant to let him know that they had arrived and Defendant told them to wait there. Darks saw the Celica approach, and another man got out of the Celica and walked to their car with the drugs. This was the same Celica th at Darks had iden tified before as Defe ndant’s ve hicle.
On August 23, 1993, Darks again placed a phone call to Defendant, and Darks and Schuler went to the spot where Defendant asked to meet them. Because there were some police officers present near the scene, Defendant called Darks back and told him to come to the market across the street from the fish ma rket. Schuler and Darks crossed the street, parked the car and went inside the market to the back room. Because Defendant did no t want anyone to come into the room except Darks, D arks refu sed to let Schuler in the back room. While Darks was in the room alone with Defendant, Darks handed Defendant the money and Defendant
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handed Darks the cocaine. As soon as Darks and Schuler went back outside, Darks gave the cocaine to Schu ler.
On September 27, 1993, Darks made a telephone call from wor k to Defe ndan t’s pager number to set up an exchange for Schuler to make on her own. Darks reached the Defendant and Defendant instructed that Sc huler s hould call him when she got to the fish market. Darks was not involved further in the September 27 transaction. On Octo ber 27 , 1993 , Dark s aga in assis ted Sc huler in setting up a drug buy from the Defendant. As a result of tha t teleph one c all, Defe ndan t told Darks to meet him at the car wash on Clarks ville Highway. Rather than Defendant meeting them at the car wash, Rodney Morris was there for the drug exchange. Darks stated that the on ly way that M orris could have kn own to go the ca r wash w ith the drugs was if th e Def enda nt had instruc ted him to go there. Darks listened to the audio record ings o f the var ious p hone calls he and Schuler had made to set up the drug buys, and identified the voice of the Defendant on the August 17, August 23, and October 27 tape recordings. During the taped conversation of October 27, Darks recalled that he asked the caller, “Who is this, Ookie or Roger?” The person replied that he was “Ookie,” and Darks identified the De fendan t as “Ook ie.” Defendant instructed Darks on that day to “let [him] call Rodney first.” Darks confirmed that the person who delivered the cocaine that day was Rodney Morris.
Ran dall Kirk Nelson, forensic scientist for the TBI, analyzed one of the samples provided by Schuler. That sample tested as eighty-three percent (83%) cocaine, with a weight of 28.2 grams.
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Ron Gaskins, Special Agent with the TBI, assisted with surveillance for Agent Schule r. On August 17, 1993, Gaskins set up surveillance on Clarksville Highway and monitored a transmitter worn by the confidential informant, Darks. Gaskins also made a tape recording of the transaction that took place between the Defendant and Darks. On September 27, 1993, Gaskins performed similar surveillance on Clarksville H ighway, m onitored the transa ction and also ma de a tap e record ing.
Maxey Gilleland, agent of the Middle Tennessee Drug Enforcement team of the TBI, a ssiste d in pro viding surveillance to Agent Schuler on August 23 and October 27, 1993. On August 17, Gilleland monitored the transactions and attempted to take pho tograph s of the blu e Celica . Gilleland w as able to photograph one of the s uspe cts invo lved in the transaction. Gilleland identified the Defendant as one of the s uspects he saw that day.
Chris Regg, Office Administrator at Mobile Com, a mobile telephone and pager service, testified that Willie Jackson, the Defendant, was a customer of Mobile Com for pager number 748-7962. This number was assigned on December 30, 1992, and the serv ice expired on Au gust 1 8, 199 3. The contra ct was with W illie Jackso n, of “212 6 Cliff Drive, A partme nt B, Na shville, Te nness ee 372 08.”
Rodney Morris, a c o-defen dant in this case, tes tified that he p led guilty to four (4) counts of selling cocaine. Morris came to know Defendant as he was a neighbor to Defenda nt on Cliff Drive. Morris also knew the Defendant by his nickname, “Ookie .” On September 27, 1993, Morris stated that he drove a blue Celica to make a drug exchange with Schuler and that Defendant was in the car with him w hile Morris swapped the drugs for money. Defendant was the person whom Schuler had
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talked with on the telephone to set up the drug buy and Defe ndan t told Mo rris that Schuler was th e one who w as su ppos ed to g et the d rugs. M orris stated that he would not have known to go exchange the drugs for money with Schuler unless Defendant had told him what kind of car Schuler would be driving and that she wanted to buy an ounce of cocaine. Morris stated that it was Defendant’s cocaine that he was taking to Schuler, and that the eleven hundred dollars ($1,100.00) he received for it from S chuler w as given to Defen dant.
On October 27, 1993, Morris went alone to meet Schuler at a car wash on Clark sville Highw ay. Morris w as wea ring Defe ndant’s p ager tha t day, and Darks paged him. Morris called Darks and told him where Defendant was. Defendant then called Morris and told him the specifics of the meeting at the car wash . After M orris met Schuler and Darks at the car wash and performed the exchange, Morris returned the money he received to Defendant. Morris describe d the blue Toyota Celica a s being o wned b y Defen dant.
The Defe ndan t prese nted tw o witne sses on his beha lf. Regg ie Reed testified that he knew both the Defendant and Rodney Morris. In 1993, Reed owned a beeper from A-Plus Communications, but he did not need it due to his travel sche dule and loaned it to Morris. The number assigned to that beeper was 271- 8314.
Joanne Schuler was also called to testify for the Defendant. Schuler testified that on De cemb er 10, 19 93, when she made the arrest of Morris and Wiley, three (3) vehicles were confiscate d. All three (3) of these vehicles were believed to be involved in the drug transactions. The first vehicle was a 1987 blue Toyota Celica,
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and the Certificate of Title for that Celica is made out to Kimberly F. Bailey. The other two (2) vehicles wh ich were confiscated had persons other than the Defendant listed as the owner on the Certificates of Title.
On cross-examination, Schuler stated that eight (8) photographs were found in the Toy ota Celica. Some of these photographs were pictures of Bailey, the owner listed on the Certificate of Title, and the Defendant together, with writing on the back stating, “To O okie, Kim , with love from Pa pa.” A nu mber o f person al docum ents were also found in the Toyota Celica which belonged to the Defendant. These docum ents included a social security card, an insurance card, a speeding citation and a phone card in the name of Willie Jackson. A state hunting license was also found in the ve hicle, a nd it wa s issue d to W illie Jackson at 2 126 C liff Drive in Nashville.
It is an offense for a pe rson to know ingly de liver or se ll a controlled substance.
Tenn. Code A nn. § 39-17-4 17(a)(2) and (3 ). The offense is comm itted “knowingly” if the person acts with respect to the conduct or circumstances surrounding the conduct with awareness of the nature of the conduct or that the c ircums tances exist. Tenn. Code Ann. § 39-11-302(b). If the person is aware that the conduct is reason ably certa in to caus e the res ult, that pers on has acted kn owingly. Id.
Joanne Schule r testified that o n Augu st 17, 199 3, she an d a con fidentia l informa nt, Ron Darks, paged a number that Defendant had provided to Darks. Defendant responded shortly thereafter with instructions for exchanging cocaine for their cash. After Sch uler and Da rks had park ed their car at the fish m arket where Defendant told them to wait, a blue Toyota Celica arrived from Cliff Drive. Schuler
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had previously confirmed that the Defendant lived at 2126 Cliff Drive and that a blue Toyota Celica was parked by that address. Darks testified that he spoke with Defendant regardin g the dru g buy on the teleph one, an d that shortly thereafter a blue Toyota Celica a rrived with two men inside. One m an app roache d Dark s with the cocaine and exchanged it for money. Testimony confirmed that the substance given to Schuler and Darks was, in fact, cocaine.
On August 23, 1993, Schuler a nd Da rks ag ain pa ged th e Def enda nt. Th is conversation was rec orded, and Darks confirmed that the Defendant was the one speaking on the record ing. Du ring this conversation, Defendant again instructed Darks to wait at the fish market. Eventually, Defendant told Darks to come inside a market across th e street an d enter th e back room. D arks testified that Defendant was the one in the back roo m who g ave him the c ocaine in exch ange for m oney. This substance was also confirmed to be cocaine.
On October 27, 1993, Darks again assisted Schuler in setting up a drug buy from the Defendant. Darks called Defendant, and Darks was instructed to meet Defendant at the car wash on Clarksville Highway. During their phone conversation, which was also reco rded, Darks specifically asked, “Is this Ookie or Roger?” Defendant responded that he was Ookie. Several witnesses verified that the Defe ndan t’s nickname was Ookie. Darks went to the car wash where a person named Rodn ey Morris , a co-de fendan t, met h im with cocaine in exchange for money. This substance was confirmed to be cocaine.
W hile Defendant urges that the uncorroborated confess ion of a co-defendant is not sufficient evidence for the convictions, there is more than sufficient evidence
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in the light most favorable to the state whereby a ra tional trier of fact could have found the Defendant guilty of these offe nses. There must b e som e fact testified to entirely indepe ndent o f an acco mplice’s testimon y, and that fact must lead to an inference that a c rime h as be en co mm itted an d that th e defe ndan t is resp onsib le therefore. State v. Fowler, 213 Ten n. 239, 373 S .W.2d 460, 463 (19 63). In addition to the testimony o f Morris, the co-defe ndant, T BI Age nt Schu ler and D arks bo th testified regardin g the dru g purch ases from the Defe ndant. F urtherm ore, both recordings and su rveillance o f the transactions identified the Defendant as committing the crimes charged. As the corrob orative eviden ce fairly a nd leg itimate ly tends to connect the accused with the commission of the crimes charged, then sufficient independent facts lead to the inference that Defendant is responsible for the commission of these drug offenses . See Marsh all v. State, 497 S.W.2d 761, 765-66 (Tenn . Crim. A pp. 197 3). This iss ue is witho ut merit.
E XTRANEOUS INFORMATION AND PREJUDICE TO THE JURY
Defendant argues that the jury was prejudicially influenced due to the introduction of extraneous info rmation to the jurors during their deliberations. Specifically, the Defendant cites a letter from a juror which refers to legal definitions provided to the jury by anoth er juror on the issue s of “age nt, selling an d delivery.” Defendant contends that these definitions were relie d upon by the jury d uring its deliberations as s uppleme ntal to and in lieu of the trial court’s ch arge to the jury.
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The stand ard with respe ct to the adm issibility of juror testimony in any fo rm when the validity of the jury verdict is challenged is found in Rule 606(b) of th e Tennessee Rules of Evidence. The admissibility standard is as follows:
Upon an inquiry in to the validity o f a verdict or a n indictm ent, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon any juror’s mind or emotion as influencing that juror to assent to or dissent from the verdict or indictmen t or concerning the juror’s mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the ju ry’s attention, whether any outside influence was improperly brought to bear upon any juror, or whethe r the jurors agreed in advance to be bound by a quotient or gambling verdict without further discu ssion; nor m ay a juror’s affidavit or evidence of any statement by the juror concerning a matter about w hich the ju ror would be prec luded fro m testifying be received for these purposes.
Tenn . R. Evid. 60 6(b) (em phasis a dded).
The definition of “delivery” was provided to the jury by the trial court during its charge to the jury. At the hearing on the motio n for ne w trial, the letter from one of the jurors, Debbie Thomas, was entered as an exhibit. The letter described to the court that after a period of deliberating, the jury returned to the trial court to inquire as to the definitions of the wo rds “sale” and “delivery.” The trial court referred the jury to its original charge for the definition of “delivery” and then proceeded to read the definition of “sale” from a c omm only used dictiona ry. The jury did not reach a verdict that day, and they were allowed to retire for the evening and to return the next morn ing to c ontinu e their d elibera tions. T hom as’ lette r states that up on the ir return, the jury fo reper son c ame in and had “written down definitions” for the words “agent, selling and delivery” which were copied out of a b usiness law b ook the jury foreperson had at ho me. Thomas described the definitions as referencing examples of people selling pizza and that this information was heavily relied up on by the jury.
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Extraneous inform ation is inform ation from a source outside th e jury.
Caldararo v. Vand erbilt University, 794 S.W.2d 738, 742 (Tenn. App. 1990) (citations omit ted). During o ral argum ents in this c ourt, the S tate conc eded th at the information provided to the jury regarding the definitions of “agent, selling and delivery” was extraneous information. We agree, but now must determine whether such e xtraneou s inform ation wa s prejudic ial to the De fendan t.
In construing Rule 606(b), after proof that a juror has received extraneous information, there arises a rebuttable presumption of prejudice, and the burden then shifts to the pros ecution to explain the conduct or to demonstrate the harmlessness of it. State v. Young, 866 S.W.2d 194, 196 (Tenn. Crim. App. 1992). No prior case has addressed the issue of prejudice based upon these exact circumstances, but similar cases have been decided based upon extraneous information and its effect upon the jury. See, e.g., Young, 866 S.W .2d at 197 (T enn. Crim. A pp. 1992); Caldararo ; 794 S.W.2d at 743.
In Caldararo , the court held that one juror’s generalized knowledge and extraneous information on the subject of diabetes was not the type of extraneous information which requires a verdict to be ove rturned. Id., 794 S.W.2d at 743-44. The court noted that this information did not indicate any prior or extraneous information regarding the parties or the events which gave rise to the case at hand. Id. at 744. Similar to Caldararo , this juror’s knowledge regarding the definitions of “agent, selling and delivery” was not the type of extraneo us inform ation to co nstitute prejudice to the Defendant. None of the extraneous information was regarding the Defendant or other parties invo lved in the d rug trans actions. The term “agent” was not in issue regarding the above convictions, so an assertion of any prejudice due
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to the definition of this word is without m erit. The jurors in the case sub judice were prope rly admonished to base their ve rdict up on the eviden ce an d the tria l court’s instructions. As the trial court provided an instruction for both the terms of “sale” and “delivery,” we must presume that the jury followed the trial court’s instructions. State v. Blackman, 701 S.W .2d 228 , 233 (T enn. C rim. App . 1985).
In Young, a pane l of this court found that after an evidentiary hearing, the trial court was in the best position to make the determination of whether the defendant was pre judiced. Id. at 196. The trial court in the case sub judice found that the evidence of Defendant’s guilt was overwhelming, and the findings of fact made by the trial court after an evidentiary hea ring are afforded th e weight of a jury verdict unles s the e videnc e con tained in the re cord p repon derate s aga inst his findings. Young, 866 S.W.2d at 197, citing State v. Killebrew, 760 S.W.2d 228 (Tenn. Crim. App. 19 88). We are satisfied that the trial court reached the proper findings, and any error was harmless in that the proof does not indicate the degree of prejud ice nece ssary to o verturn a ve rdict.
J URY INSTRUCTIONS AND PROCURING AGENT
Defendant argues that the trial court’s refusal to charge the jury on the “procuring agent” defense was prejudicial error. At the close of the proof, the Defendant filed a request for the trial court to charge the jury on the defense of “procuring agent.” The motion was d enied and th e cha rge wa s not in clude d in the jury instructio ns.
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The “procuring agent” defense is a viable defense to charges of selling a controlled substan ce. State v. Baldwin, 867 S.W.2d 358, 360 (Tenn. Crim. App. 1993). If the facts in this case are susceptible of inferring that Defendant could be viewed as a pro curing ag ent, then th e instructio n shou ld have b een give n. See Mitchell v. S mith, 779 S.W .2d 384 , 390 (T enn. Ap p. 1989 ).
The evidence at trial showed that on August 17, 1993, Darks, the confidential informa nt, paged the num ber De fendant had provided him and spoke to the Defendant regarding the sale of an ounce of cocaine. Defendant arranged the location of the sale, and Agent Gilleland of the TBI identified Defendant as one of the suspe cts he monitored at that location. On August 23, 1993, Darks paged Defen dant, and D efend ant ag ain instructed Darks o n where to mee t him to exchange the money for cocaine. When Defendant arrived, he directed Darks to a back room in a market and made the actual exchan ge there with Darks. On October 27, 1993, Darks paged Defendant, and Defendant returned the call. When Darks questioned Defendant as to his iden tity, Defe ndan t confirm ed his identific ation b y his nickname “Ookie.” Defendant instructed Darks on where the drug sale should take place, and wh en De fendan t went to the car wash as instructed, an agent of the Defe ndan t’s was the re and p rovided D efenda nt with the c ocaine . This agent, Rodney Morris, testified at trial that he w as directe d by De fendan t to meet D arks with the drugs and that he returned the money he received for the drugs from Darks back to the De fendan t.
Under the particular facts of this case, any claimed error in not instructing the jury about a “procurin g agen t” is without m erit. A person acting as an agent may use the procuring agent defense if the defendant did not sell the substance, received no
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bene fit from the transactio n, and if the defend ant was in no way interested in the transac tion. See Baldw in, 867 S.W .2d at 359 . This issu e is withou t merit.
D OUBLE JEOPARDY
Defendant argues that the trial co urt erred in allowing th e jury to delib erate and ultima tely convict him of both the sale and the delivery of cocaine arising out of one transaction on October 27, 1993. Defen dant c onten ds tha t multip le convictions arising out of a singular course of conduct can only occur if each of the criminal statutes charged requires proof of an additional fact or element which is not found in the other . See Blockburger v. United States, 284 U.S . 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 30 6, 309 (1 932).
Three fundamental principles underlie double jeopardy: “(1) protection against a second prosecution after an acquittal; (2) protection against a second prosecution after conviction; and (3) p rotection agains t multiple punishm ents for the same offense .” State v. Denton, 938 S.W .2d 373, 378 (Tenn. 199 6) (citations omitted). The case sub judice involves m ultiple punis hmen ts for the “sa me” offe nse. In determining whether two offenses are the “same” for double jeopardy purposes, the Blockburger test applies:
[W]he re the sam e act or tran saction con stitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a n addition al fact whic h the othe r does n ot.
Blockburger, 284 U.S. at 307, 52 S.Ct. at 182, 76 L.Ed. at 3 06; State v. Black, 524 S.W .2d 913, 919 (Tenn. 197 5).
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In addition to the Blockburger test, the trial court must consider the “same evidence” test, that is whether the sam e evide nce is required to prove the offenses. Denton, 938 S.W .2d at 381 , citing Duch ac v. State , 505 S.W.2d 237, 239 (Tenn. 1973). Finally, the trial court must analyze whether there were multiple victims or discrete acts and compare the purposes o f the respe ctive statute s. Denton, 938 S.W .2d at 381 .
After an analysis of the above principles to the evidence and facts of this case, we find that the two separate convictions regarding the drug transaction on October 27, 1993 constitute double jeopardy. Defendant may only be convicted of one offense, either the “sale” or the “delivery” of cocaine on October 27, 1993. It is an offense for a person to knowingly deliver or sell a controlled substance. Tenn. Code Ann. § 39-17 -417(a)( 2) and (3 ). Under Blockburger, the offense in question involves two (2) separate subsections of Tennessee Code Annotated section 39-17 -417(a). The Sentencing Commission Comments to Tennessee Code Annotated section 39- 17-417 provide that, “[T]he commission wished to make it clear that each of these acts was a separate o ffense and the refore listed the ma nufacture, delivery, sale or possession with intent to manufacture, deliver or sell each as a separate subse ction.” Wh ile both convictions are valid under Blockburger, the “same evidence” test under Duchac reveals that in order to convict the Defendant for the delivery of the cocaine on October 27, the same evidence is necessary for the conviction for the sale of the cocaine. Because the Defendant did not deliver the cocaine himself, but sent his co-defendant to deliver the cocaine and then return the money from Darks and Schuler, the evidence necessary to convict the Defendant of the sale is also necessary to convict him of the delivery of cocaine. Because
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these convictions fail the Duchac prong of the test for dou ble jeo pardy , our an alysis need n ot go furthe r.
The conviction for delivery of cocaine is merged with the convic tion for th e sale of cocaine on October 27, 1993.
INCULPATORY EVIDENCE
Defendant argues that the trial court erred by allowing the State to introduce evidence which was not provided to the Defendant prior to trial as discovery material pursuant to Rule 16(a)(1)(C) of the Tennessee Rules of Criminal Procedure. During the Defe ndan t’s proof, the Defendant called Agent Schuler of the TBI as a witness to testify regarding the three (3) vehicles which were confiscated at the time of the arrests. Defend ant sou ght to establish that these three (3) vehicles were not owned by the Defendant. During cross-examination by the State of Agent Schuler, the State introduced, over objection by Defendant’s trial counsel, various tangible docum ents an d objects which w ere foun d in these three (3) ve hicles.
The rule regarding discovery material is as follows:
Upon reque st of the Defe ndan t, the sta te sha ll perm it the defendant to inspect and copy or photograph books, papers, documents, photographs . . . which are within the possession, custody or control of the state, and w hich a re ma terial to th e prep aration of the d efend ant’s defens e . . . or were o btained from or b elong to th e defen dant.
Tenn. R . Crim. P. 16(a)(1 )(C).
The trial court allowed the evidence to be admitted on the basis that it was inculpatory, that Defenda nt opened the door for its adm ission by calling Agent Schuler as a witness, and because the State did not seek to introduce the items as
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evidence during its case-in-chief. The items included eight (8) photographs, the Defe ndan t’s insura nce c ard, a s peed ing ticke t issue d to the Defe ndan t, Defe ndan t’s phone card, soc ial secu rity card and h unting license . Prior to trial, De fenda nt did request the disclosure of any discovery material pursuant to Rule 16.
During oral argu ments in this court, the State conceded that such evidence was indee d within the parameters of discovery material and should have been provided to Defendant and his trial counsel prior to trial. While we do conclude that it was error for the State to fail to allow the Defendant to inspect these items pursuant to his discovery request, the Defendant has failed to demonstrate prejudice, and thu s any su ch error is h armles s beyon d a reas onable doubt. See Tenn. R. Crim. P. 52(a). The evidence of Defendant’s guilt is overwhe lming. Testimony of three separate witnesses, including a TBI agent, confidential informant and co-defendant, confirmed Defendant’s presence in the Toyota Celica and that the Toyota Celica was used by the Defendant long before Defendant’s personal possessions from the car were admitted into evidence. Therefore, in the context of the entire record, the violation does not affect the judgment or result in p rejudice to the judicial process, and any error by the trial court was harmless. Tenn. R. App. P. 36(b).
After a thorough review of the record, the briefs and the law applicable to the case sub judice, we affirm in part and reverse in part the jud gmen ts of the trial co urt. Defe ndan t’s conviction for the delivery of cocaine on October 27, 1993 is merged with the conviction for the sale of cocaine on October 27, 1993. In all other respects, the judgments are affirmed.
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THOMAS T. W OODALL, Judge
CONCUR:
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JOHN H. PEAY, Judge
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DAVID H. WELLES , Judge