State of Tennessee v. Steven O. Hughes-Mabry

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 25, 2012

STATE OF TENNESSEE v. STEVEN O. HUGHES-MABRY

Appeal from the Circuit Court for Sullivan County

No. S54919 R. Jerry Beck, Judge

No. E2011-02255-CCA-R3-CD Filed May 16, 2013

The Defendant, Steven O. Hughes-Mabry, was convicted by a Sullivan County jury of

possession of .5 grams or more of cocaine with intent to sell or deliver within 1000 feet of

a school zone, introduction of contraband into a penal institution, and driving on a suspended

license. He was sentenced to concurrent terms of fifteen years, three years, and six months,

respectively. In this direct appeal, the Defendant challenges (1) the denial of his motion to

suppress, arguing that the officers lacked reasonable suspicion for an investigatory stop; (2)

the sufficiency of the evidence establishing that the possession offense occurred within 1000

feet of a school zone; and (3) the trial court’s refusal to impose sanctions against the State

for failing to preserve the identity of a witness. After a thorough review of the record and

the applicable authorities, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and

R OBERT W. W EDEMEYER, JJ., joined.

Paul A. Harr, Blountville, Tennessee, for the appellant, Steven O. Hughes-Mabry.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Barry P. Staubus, District Attorney General; and Joseph Eugene Perrin, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

This case arises from two undercover officers conducting surveillance at a gas station

in Kingsport on October 30, 2007. On April 9, 2008, a Sullivan County grand jury indicted

the Defendant for possession of .5 grams or more of cocaine with intent to sell or deliver

within 1000 feet of a school zone, a Class A felony; introduction of contraband into a penal

institution, a Class C felony; and driving on a suspended license, a Class B misdemeanor.

See Tenn. Code Ann. §§ 39-16-201, 39-17-417, 39-17-432, 55-50-504.

Thereafter, the Defendant filed a motion to suppress “all evidence obtained, arising

from, and incident to the stop, arrest and search conducted by agents of the Kingsport Police

Department and/or the Sullivan County Sheriff’s Department.” As grounds for suppression,

the Defendant argued that he “did not engage in a consensual encounter with law

enforcement officials, nor was there a reasonable basis or probable cause for an investigatory

stop or probable cause for a seizure.” Following the denial of the Defendant’s motion, the

case proceeded to trial.

The evidence presented at trial revealed the following facts. Officers Steve Summey

and Tim Crawford of the Kingsport Police Department were at the Sunoco gas station around

9:00 p.m. on October 30, 2007. The gas station was located on Lynn Garden Drive, which,

in 2007, was in the vicinity of Tri-Cities Christian Elementary School.

The two officers were wearing “plain clothes” and were sitting in an unmarked police

car, which was parked facing the front of the store “on the far right parking space.” While

they were observing the area, a gray Pontiac Grand Am entered the gas station parking lot

and parked on the south side of the building, which was “directly in front of” their police car.

The driver of that vehicle, a white male, exited the car and stood beside it for a short while.

He then opened the car’s hood, but never looked inside at the engine compartment. Neither

officer observed any mechanical problems with the vehicle when it entered the gas station

parking lot.

Officer Summey opined that the man appeared to be “waiting for someone,” looking

in the direction of the “other parking spaces.” Thereafter, a purple BMW, driven by the

Defendant, entered the gas station’s parking lot and parked in front of the station, next to the

unmarked police car. Both officers testified that, after the Defendant exited his vehicle, he

made eye contact with the driver of the Grand Am. The two men then proceeded inside the

store together.

Sgt. Crawford followed the men inside the gas station. At some point, Sgt. Crawford

witnessed the two men having a conversation in the back of the store. According to Sgt.

Crawford, both men glanced at him and then separated. Sgt. Crawford thereafter returned

to his vehicle and told Officer Summey that he believed a drug deal was about to take place.

As Sgt. Crawford was heading back inside the store, the two men exited the gas station. It

did not appear to the officers that either man had made a purchase while inside the store.

Officer Summey confronted the white male, and Sgt. Crawford stopped the Defendant.

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Officer Summey testified that he identified himself as a police officer to the white

male and requested consent to search his person. According to Officer Summey, the white

male “was very nervous” and “shaking,” looking “toward the direction of [the Defendant].”

After obtaining consent from the white male, a search of his person did not reveal any drugs,

only some cash in “one pocket” and a twenty-dollar bill in the pocket of his jacket. Officer

Summey explained that keeping money in separate pockets was indicative of a drug

transaction; according to Officer Summey, a person about to purchase drugs engages in this

behavior to keep their money separate and not “draw attention to all their money.” Officer

Summey, having no further cause to detain this individual at that time, released him and went

to assist Sgt. Crawford with the Defendant. According to Officer Summey, his encounter

with the white male was “very quick,” lasting “[a] minute or less.”

In the meantime, Sgt. Crawford had likewise approached the Defendant and identified

himself as a police officer. He asked to speak with the Defendant, and Sgt. Crawford

maintained that the ensuing conversation was consensual. Sgt. Crawford asked the

Defendant if had any identification, but the Defendant was unable to produce a driver’s

license. The Defendant gave Sgt. Crawford his personal information and told Sgt. Crawford

that he lived in Michigan. The Defendant further informed Sgt. Crawford that he had lost

his driver’s license, so Sgt. Crawford attempted to confirm through dispatch whether the

Defendant had a valid license. According to Sgt. Crawford, the Defendant became

“increasingly nervous” and “real fidgety.” Believing that the Defendant was going to run,

Sgt. Crawford handcuffed the Defendant “temporarily until [they] determined what his

license status was.”

A records check in both Michigan and Tennessee revealed no valid license for the

Defendant. The Defendant then told Sgt. Crawford that, although he lived in Michigan, he

had a Georgia driver’s license. Dispatch confirmed that the Defendant’s Georgia license was

suspended. At that time, Sgt. Crawford advised the Defendant that he was under arrest for

driving on a suspended license, but did not inform the Defendant of his Miranda rights. At

trial, the parties stipulated that the Defendant’s license was in fact suspended.

Officer Summey informed the Defendant that he was going to be transported to the

county jail. The officers attempted to search the Defendant’s person there at the gas station,

but the Defendant refused to spread his legs. Officer Summey asked the Defendant if he had

drugs hidden on his person, and the Defendant replied that he did not. Officer Summey

explained to the Defendant that if he brought drugs or weapons into the jail, he could face

additional charges.

Once inside the jail, a more thorough search of the Defendant’s person was conducted.

Thirty-two “rocks” were found in the Defendant’s buttocks and one “rock” was found in the

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brim of the Defendant’s hat. The thirty-two “rocks” were all individually packaged. Officer

Summey opined that the “rock” found in the Defendant’s hat was easily accessible to the

Defendant and worth approximately twenty dollars. Several of the “rocks” were later tested

by the Tennessee Bureau of Investigation, revealing .12 grams of cocaine in the package in

the Defendant’s hat and .62 grams of cocaine in four of the thirty-two “rocks” from the

Defendant’s buttocks. Based on the established weight, it was determined that further testing

of the remaining “rocks” was not needed.

Also, the Defendant was interviewed once in custody. After receiving Miranda

warnings, the Defendant confessed to selling drugs.

Following the presentation of proof, the jury found the Defendant guilty as charged.

A sentencing hearing was held, and the trial sentenced the Defendant as a Range I, standard

offender to fifteen years at 100 percent for the cocaine possession in a school zone

conviction; three years for the introduction of contraband into a penal institution conviction;

and six months for the driving on a suspended license conviction. The court ordered

concurrent service of all three sentences, resulting in an effective fifteen-year sentence in the

Department of Correction. This appeal followed.

ANALYSIS

On appeal, the Defendant challenges (1) the denial of his motion to suppress, arguing

that the officers lacked reasonable suspicion for an investigatory stop; (2) the sufficiency of

the evidence establishing that the possession offense occurred within 1000 feet of a school

zone; and (3) the trial court’s refusal to impose sanctions against the State for failing to

preserve the identity of a witness.1 We address each in turn.

I. Motion to Suppress

When the parties first briefed the suppression issue, the appellate record did not

include an order from the trial court denying the motion to suppress or a transcript from the

hearing.2 This court, sua sponte, ordered the record on appeal to be supplemented with a

transcript of the motion to suppress hearing and any written order on the motion, if one was

1

For the purpose of clarity, we have reordered and combined several of the issues as presented by the

Defendant in his brief.

2

Originally, the State contended that, because the appellate record was incomplete, the Defendant had

waived appellate review of the issue. The State went on to argue that, waiver notwithstanding, the trial court

properly denied the Defendant’s motion to suppress.

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entered. Once the record was supplemented, we allowed the parties time to rebrief the issue

addressing arguments raised by the evidence presented in the transcript.3

In his initial brief, the Defendant argued that his suppression motion was improperly

denied, specifically that the evidence “was obtained without a reasonable suspicion for an

investigatory stop and therefore without probable cause for a search” in violation of his

Fourth Amendment rights. In his supplemental brief, the Defendant frames the issue as

“[t]he trial court erred in denying the Defendant’s motion to suppress because the officer[’]s

actions were not within a community caretaker function and there was not a consensual

conversation. The officers lacked a sufficient basis for an investigatory stop of the

Defendant.” The State again submits that the trial court properly denied the Defendant’s

motion to suppress “because the arresting officer developed probable cause to arrest the

Defendant after he engaged him in a consensual conversation.”

On appellate review of suppression issues, the prevailing party “is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence.” State v. Talley,

307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996)). Questions about “the assessment of witness credibility, the weight and value of

evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the

trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the trial court

“makes findings of fact in the course of ruling upon a motion to suppress, those findings are

binding on appeal unless the evidence in the record preponderates against them.” Id.

Additionally, a trial court’s conclusions of law along with its application of the law to the

facts are reviewed de novo without any presumption of correctness. Id. Both proof

presented at the suppression hearing and proof presented at trial may be considered by an

appellate court in deciding the propriety of the trial court’s ruling on a motion to suppress.

State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998); State v. Perry, 13 S.W.3d 724, 737

(Tenn. Crim. App. 1999).

Here, the trial court determined the initial conversation was consensual. On this point,

the trial court made the following findings of fact and conclusions of law:

The officers see the Defendant . . . pull into the parking lot from a

public road. It was either Lynn Garden Drive or Walker Street. It’s on the

corner. Automobile winds up there. So the officers saw a misdemeanor —

eventually determined to be a misdemeanor committed in their presence. . . .

3

The trial court ruled orally from the bench; thus, it appears that no written order of denial was ever entered,

as none was transmitted to this court in accordance with our order.

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The officers see other activity going on which would be consistent with a

potential crime being committed. May not be. Certainly wouldn’t arise to

probable cause.

But anyway, the officers see this. And one of the officers, as the

Defendant leaves the store, just says, “Can I talk to you?” Question, “Can I

talk to you?”

And his recollection is, Defendant: “Oh, sure.”

And the officer asked, “Do you have a driver’s license?” I guess he

could have easily said, “Do you have identification?”

Fellow says, “No. I’m from Michigan,” or something of that nature.

Later, after they’d talked, the officer evidently did some kind of . . .

At that point he might have been detained. I don’t know. I doubt it,

from what I’ve heard. The . . .

But in any case, the police officer found out he’s from Georgia. He’s

given two different places to live. The officer[s] saw a misdemeanor

committed in their presence, once they found out he was not licensed.

The trial court then referenced Tennessee Code Annotated § 40-7-118, the ‘cite and release’

statute, which generally requires an officer to issue a citation for a misdemeanor offense;

however, under some circumstances, an officer may arrest an individual. The trial court

found the following extenuating circumstances in this case warranting an arrest: when the

driver cannot provide satisfactory evidence of identification; the prosecution might otherwise

be jeopardized; or there is a reasonable likelihood the person may fail to appear. See Tenn.

Code. Ann. § 40-7-118(c)(3), (4), (5). The trial court reasoned, “[The Defendant] had given

the wrong state where he lived. He had stated Michigan, or where he was from as

Michigan.”

Alternatively, the trial court determined that, even if the encounter rose to the level

of an investigatory stop under Terry v. Ohio, 342 U.S. 1 (1968), based on the totality of the

circumstances, the stop was proper. The trial court ruled on the issue as follows:

[T]he officers had information in that area of the convenience store . . . that

dope deals were going down in that area. Very similar to Terry.

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The officers could stop a person temporarily to see what they’re doing

there. “What’s your business here?”

I think in Terry wasn’t it outside a — in a high crime area and it was

late at night or something like that?

And the officer goes up and tells, “Who are you?”

Now, in the Terry case, of course, it went on to a frisk, [be]cause the .

. . U.S. Supreme Court indicated it was of the public interest, great public

interest make sure the officers approached don’t get shot, so they can do a frisk

for weapons only. Not for evidence, but for weapons.

....

So assume it was a Terry stop. That means you can go up and talk to

somebody. I guess I could go up and talk to somebody. “Will you talk to

me?” I guess any citizen in the United States could, as long as it wasn’t a

breach of the peace, harassment, or stalking, or something like that.

And asked — just a simple question, “Have you got any identification?”

Defendant says, “No, but I’m from Michigan.” Under Terry, upon

suspicion that any person may be armed . . .

The trial court then read excerpts from the cases of Katz v. United States, 389 U.S. 347

(1967), and Terry v. Ohio. After reading, the trial court continued:

Under the totality of the circumstances, the officers’ actions at this

Sunoco gas station, I think the police acted properly and reasonably. It was not

an unreasonable stop. I guess it could be argued that maybe once he got him

stopped . . .

But it was no more than going up to say, “Have you got any

identification?” you know, or something of that nature.

Even if it turned into a Terry v. Ohio stop, which I’m not even

convinced we got a Terry v. Ohio stop, and even if the Defendant could prevail

that he was prevented by leaving a short period of time by the officer, then it

would be — still be permissible under Terry v. Ohio.

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The initial question posited for this court is whether the officer was justified in

approaching this Defendant and asking for some sort of identification or his driver’s license

after the Defendant agreed to speak with the officer. Both the federal and state constitutions

offer protection from unreasonable searches and seizures with the general rule being “that

a warrantless search or seizure is presumed unreasonable and any evidence discovered

subject to suppression.” Talley, 307 S.W.3d at 729 (citing U.S. Const. amend. IV; Tenn.

Const. art. I, § 7). However, these constitutional principles do not limit all contact between

the police and private citizens. Instead, “these constitutional protections are implicated only

when a police officer’s interaction with a citizen impermissibly intrudes upon the privacy or

personal security of the citizen.” State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). As

such, courts have recognized three different types of police-citizen interactions: “1) a full

scale arrest which must be supported by probable cause; 2) a brief investigatory stop which

must be supported by reasonable suspicion; and 3) a brief police-citizen encounter which

requires no objective justification.” State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006).

It is only “when the officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

Terry, 392 U.S. at 19 n.16. It has repeatedly been held that “even when police have no basis

for suspecting that an individual has committed or is about to commit a crime, the officer

may approach an individual in a public place and ask questions without implicating

constitutional protections.” Daniel, 12 S.W.3d at 425. To that end, “courts have consistently

held that the Fourth Amendment is not implicated and no seizure occurs when police

approach an individual, in a public place, or in a parked car” and ask the individual questions

or request to search, “so long as police do not convey a message that compliance with their

request is required.” Id. at 426. The rule has been further explained as follows:

[L]aw enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place, by asking

him if he is willing to answer some questions, by putting questions to him if

the person is willing to listen, or by offering in evidence in a criminal

prosecution his voluntary answers to such questions. Nor would the fact that

the officer identifies himself as a police officer, without more, convert the

encounter into a seizure requiring some level of objective justification. The

person approached, however, need not answer any question put to him; indeed,

he may decline to listen to the questions at all and may go on his way. He may

not be detained even momentarily without reasonable, objective grounds for

doing so; and his refusal to listen or answer does not, without more, furnish

those grounds.

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Id. at 425 (citing Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion); see also

Florida v. Bostick, 501 U.S. 429, 434 (1991); INS v. Delgado, 466 U.S. 210, 216-17 (1984);

Brown v. Texas, 443 U.S. 47, 50-53 (1979); State v. Moore, 776 S.W.2d 933, 938 (Tenn.

1989)).

Accordingly, a “seizure” implicating constitutional concerns occurs only if, in view

of all the circumstances surrounding the incident, a reasonable person would have believed

that he or she was not free to leave. See Bostick, 501 U.S. at 437. To determine whether a

police encounter amounts to a seizure, courts consider all of the circumstances surrounding

the encounter and determine whether the conduct of the police would have communicated

to a reasonable person that he or she was not free to decline the officer’s request or otherwise

terminate the encounter. Id. at 434-35; see also Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984).

Some of the factors which are relevant and should be considered by courts when applying

this totality of the circumstances test include the time, place and purpose of the encounter;

the words used by the officer; the officer’s tone of voice and general demeanor; the officer’s

statements to others who were present during the encounter; the threatening presence of

several officers; the display of a weapon by an officer; and the physical touching of the

person of the citizen. See generally Michigan v. Chesternut, 486 U.S. 567, 575 (1998);

United States v. Mendenhall, 446 U.S. 544, 554 (1980); Wayne R. LaFave, Search and

Seizure, § 5.1(a).

Under this analysis, police-citizen encounters do not become “seizures” simply

because citizens may feel an inherent social pressure to cooperate with police. Daniel, 12

S.W.3d at 425. “While most citizens will respond to a police request, the fact that people do

so, and do so without being told they are free not to respond, hardly eliminates the consensual

nature of the response.” Delgado, 466 U.S. at 216. Courts have typically held that an

encounter becomes a “seizure” if an officer: (1) pursues an individual who has attempted to

terminate the contact by departing; (2) continues to interrogate a person who has clearly

expressed a desire not to cooperate; (3) renews interrogation of a person who has earlier

responded fully to police inquiries; (4) verbally orders a citizen to stop and answer questions;

(5) retains a citizen’s identification or other property; (6) physically restrains a citizen or

blocks the citizen’s path; (7) displays a weapon during the encounter. Daniel, 12 S.W.3d at

425 (citing LaFave § 9.3(a) (collecting cases)).

In Daniel, our supreme court cited with approval the case of State v. Butler, 795

S.W.2d 680, 685 (Tenn. Crim. App. 1990); a case which is factually similar to the

circumstances presented here. There, defendants Butler and Riggins were parked in the lot

of a video store for several hours. The proprietor of the store became suspicious and had a

friend call the police. Several officers arrived at the scene, one of whom approached the

driver’s side of the car, which was occupied by Riggins. The officer asked for Riggins’s

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driver’s license; Riggins replied that he did not have a license or any other form of

identification. After checking the vehicle’s registration, the officer told defendant Butler,

who did have a license, to move the car. As Butler opened the door and began to get out of

the passenger’s side, the officer observed a gun in the rear floorboard. Both defendants were

arrested for carrying a firearm and, thereafter, linked to an earlier burglary. Butler, 795

S.W.2d at 684.

Like the Defendant in this case, the defendants in Butler argued that the trial court

should have suppressed the evidence as the product of an unlawful stop and seizure. After

stating the rule that police officers may legitimately approach a vehicle in a public place, this

court said, in part, as follows:

The officer only detained Riggins when she learned that he was not in

possession of a valid driver’s license. Because a person must have a driver’s

license in his possession when operating a vehicle, the officer acted within her

authority by refusing to let Riggins drive the vehicle away.

From then until the point of arrest, the officers’ conduct was reasonable.

When the officer discovered that Butler had a valid operator’s license, he was

given permission to drive the vehicle off the lot. When the police saw a pistol

within Butler’s reach, they had a reasonable basis to search the car’s passenger

compartment.

Because the officers had probable cause to arrest both defendants for

possession of a weapon with intent to go armed, the search of the passenger

compartment may also be upheld as a search incident to arrest.

Id. at 685 (internal citations omitted).

Butler controls this case. The officers observed the Defendant drive his vehicle into

the Sunoco parking lot, park, exit, and go inside the gas station. After exiting the gas station,

Sgt. Crawford, dressed in plain clothes, approached the Defendant, identified himself as a

police officer, and asked to speak with the Defendant. Sgt. Crawford testified that the

Defendant agreed to speak with him. At the suppression hearing, Sgt. Crawford stated that,

initially, the Defendant was free to leave and was not blocked in any way from walking away.

During the ensuing conversation, Sgt. Crawford asked the Defendant where he lived, and the

Defendant replied that he lived in Michigan. Sgt. Crawford then asked the Defendant if had

any identification, but the Defendant was unable to produce any, including a valid driver’s

license. The Defendant gave Sgt. Crawford his personal information and informed Sgt.

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Crawford that he had lost his driver’s license. Sgt. Crawford attempted to confirm through

dispatch whether the Defendant had a valid license.

In Butler, we held that “an officer may legitimately approach a vehicle parked n a

public place and make a request for identification of the driver.” 795 S.W.2d at 685. In this

case, the officers had actually seen the Defendant driving the vehicle before walking up to

him in a public place and requesting identification. The Defendant consented to speak with

Sgt. Crawford, and upon questioning, he could not provide a valid driver’s license. As relied

upon by the State in their argument, Tennessee Code Annotated section 55-50-351(a)

provides, in pertinent part, as follows:

Every licensee shall have such licensee’s license in immediate

possession at all times when operating a motor vehicle and shall display it

upon demand of any officer or agent of the department or any police officer of

the state, county or municipality. . . . [A]ny other law enforcement officer . .

. has the right to demand the exhibition of the license of any operator of a

motor-driven cycle as described in § 55-8-101, and effect the arrest of any

person so found to be in violation of this section.

Tenn. Code Ann. § 55-50-351(a) (emphasis added). Sgt. Crawford acted within his authority

to detain the Defendant when the Defendant could not produce a driver’s license upon

demand in an effort to determine the status of that license. At the motion to suppress

hearing, Sgt. Crawford confirmed that after the Defendant could not produce a valid driver’s

license, he was no longer free to leave and was placed in handcuffs when he began acting

“nervous” and “fidgety.” Sgt. Crawford thereafter determined that the Defendant’s license

was suspended and properly arrested him for that violation.4 After the officer’s lawful

4

Probable cause to arrest need not be “predicated upon the offense invoked by the arresting officer, or even

upon an offense ‘closely related’ to the offense invoked by the arresting officer.” Jaegly v. Couch, 439 F.3d

149, 153 (2d Cir. 2006). Additionally, probable cause need only exist for some criminal offense; it does not

matter that an officer believed he was arresting a suspect for a different offense. Knight v. Jacobson, 300

F.3d 1272, 1275 n.2 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002) (“[W]hen an

officer makes an arrest, which is properly supported by probable cause to arrest for a certain offense, neither

his subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the

wrong offense vitiates the arrest.” (citation omitted)). See also United States v. Lester, 647 F.2d 869, 873

(8th Cir. 1981) (holding that the “the validity of the arrest should be judged by whether the arresting officers

actually had probable cause for the arrest, rather than by whether the officers gave the arrested person the

right reason for the arrest”); LaFave § 1.4(d) (observing that the exclusion of evidence solely due to an

officer’s mistaken statement of the grounds for an arrest is unjustified “because such situations are often

attributable to complicated legal distinctions between offenses or an officer’s failure to record all the bases

or the strongest basis upon which the arrest was made”); cf. Royer, 460 U.S. at 507 (observing that “the fact

(continued...)

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approach and subsequent lawful detention of the Defendant to determine the status of his

license, the events which unfolded gave rise to probable cause for the Defendant’s arrest for

driving on a suspended license. Butler, 795 S.W.2d at 685; see also State v. Ronnie Harrison

Gibbs, No. 03C01-9404-CR-001, 1995 WL 455941, at *5 (Tenn. Crim. App. Aug. 2, 1995).

Sgt. Crawford approached the Defendant in a public place after seeing the Defendant

drive a vehicle, requested a driver’s license after the Defendant agreed to speak with him,

and thereafter detained the Defendant when he could not produce one. This Sgt. Crawford

could legitimately do, notwithstanding the fact that the officers were motivated by their

desire to investigate a possible drug transaction. See Butler, 795 S.W.2d at 685; State v.

Smith, 787 S.W.2d 34, 35 (Tenn. Crim. App. 1989) (“Even though the officer was primarily

motivated by the radio report, if his actions were reasonable on other grounds, even if the

reasons are not articulated by the officer, the stop would be legal.”). The drugs discovered

following the Defendant’s lawful arrest were properly admitted at his subsequent trial. The

Defendant’s suppression issue is without merit.

II. Sufficiency of the Evidence

The Defendant has challenged the sufficiency of the evidence supporting his

conviction for possession of .5 grams or more of cocaine with intent to sell or deliver within

1000 feet of a school zone. Specifically, he argues that the State failed to prove that the

offense occurred in a school zone. According to the Defendant, “The [S]tate’s evidence as

to the distance from the school property to the point of arrest was . . . insufficient as

established by the testimony of Jake White regarding the manner of calculation of that

distance.” The Defendant lodges no complaint to the other elements of the offense nor to his

other convictions. The State responds that the evidence established that the gas station where

the Defendant was arrested was located within 1000 feet of Tri-Cities Christian Elementary

School.

An appellate court’s standard of review when a defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing 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 doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This

court does not reweigh the evidence; rather, it presumes that the jury has resolved all

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

4

(...continued)

that the officers did not believe there was probable cause and proceeded on a consensual or Terry-stop

rationale would not foreclose the State from justifying [defendant’s] custody by proving probable cause”).

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testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the

presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the

defendant has the burden of illustrating why the evidence is insufficient to support the jury’s

verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Our supreme court recently clarified that circumstantial evidence is as probative as

direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the

supreme court rejected the previous standard which “required the State to prove facts and

circumstances so strong and cogent as to exclude every other reasonable hypothesis save the

guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.

Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Instead, “direct

and circumstantial evidence should be treated the same when weighing the sufficiency of

such evidence.” Id. at 381. The reason for this is because with both direct and circumstantial

evidence, “a jury is asked to weigh the chances that the evidence correctly points to guilt

against the possibility of inaccuracy or ambiguous inference[, . . . and i]f the jury is

convinced beyond a reasonable doubt, we can require no more.” Id. at 380 (quoting Holland

v. United States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal

of a conviction is not to contemplate all plausible inferences in [a d]efendant’s favor, but to

draw all reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343

S.W.3d 60, 67 (Tenn. 2011).

“It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance

with intent to manufacture, deliver or sell the controlled substance.” Tenn. Code Ann. §

39-17-417(a)(4). Furthermore, “[a] violation of subsection (a) . . . is a Class B felony if the

amount involved is point five (.5) grams or more of any substance congaing cocaine . . . .”

Tenn. Code Ann. § 39-17-417(c)(1). Additionally, where the State establishes that the

violation of subsection 417 “occurs on the grounds or facilities of any school or within one

thousand feet (1,000') of the real property that comprises a public or private elementary

school,” the defendant is subjected to a higher offense classification, a greater fine, and a

minimum mandatory sentence. See Tenn. Code Ann. § 39-17-432.

In this case, as proof that the sale occurred in a drug-free school zone, the State

presented the testimony of Pat Yelton, the administrator of Tri-Cities Christian Schools. She

testified that she had worked for Tri-Cities Christian Schools for thirty-four years and was

familiar with the various school campuses. Ms. Yelton testified that, on October 30, 2007,

Tri-Cities Christian School was operating a private elementary school in the Lynn Garden

area of Kingsport. She reviewed the map of the area that had been prepared for trial and

agreed that it showed the proper location of the school. Ms. Yelton confirmed that Tri-Cities

Christian School owned all of the property surrounding the building and that at no time was

-13-

any part of the property leased to a third party. However, according to Ms. Yelton, Tri-Cities

Christian School did not own “the field across the road” from the school, but they did use the

field “for the physical fitness or educational part of [their] program.”

The State also presented the testimony of Jake White, who had been employed for

over fourteen years with the City of Kingsport in the Geographic Information Systems

Department (“GIS”). In this case, Mr. White created a map of the area using aerial

photographs and property line data from the GIS Department’s database. On this map, the

Tri-Cities Christian Elementary School’s property was outlined in red, which included “a

track or an athletic field of some sort,” and the 1,000 feet “buffer” was shaded in blue. 5

According to Mr. White, “[t]ypically the property boundary lines come from the property

assessor’s officer,” and they also used “address information” maintained by the GIS

Department. Mr. White explained, “once the property’s boundary identified,” the computer

system “generate[s] a buffer so many feet or miles or any distance from the identified piece

of property.” Based upon his calculations, Mr. White opined that, on October 30, 2007, the

Sunoco gas station was within 1000 feet of Tri-Cities Christian Elementary School’s

property.

Additionally, Officer Summey verified the accuracy of the map, confirming street

names and the location of the gas station and the school on the map. Sgt. Crawford testified

that signs to the school were visible from Lynn Garden Drive. In fact, Sgt. Crawford stated

that the school itself could be seen from Lynn Garden Drive.

The Defendant’s sole argument is that the State did not prove that the offense occurred

within 1000 feet of school property. He challenges Mr. White’s “manner of calculation.”

The Defendant noted that Mr. White testified that the map included the football field, which

Ms. Yelton stated was not school property. He further asserted that the records of the county

property assessor had not been reviewed and verified for accuracy and that “[n]o independent

calculation of the one-thousand (1,000) foot protected zone had been calculated.”

Here, Mr. White created the map using the GIS Department’s database and aerial

photographs. He testified that the offense took place within 1000 feet of Tri-Cities Christian

Elementary School. We cannot review the specifics of the map because it is not included in

the record on appeal. There is no indication from the record before this court that inclusion

of the field played any significant role in Mr. White’s calculation. Mr. White was thoroughly

5

The large aerial map was retained by the trial court clerk’s office and not transmitted to this court on appeal

due to the “bulky” nature of the exhibit. Apparently, the large aerial map was a “photograph of the relevant

area upon which were superimposed property lines and color coding indicating the property comprising the

school and the one thousand foot (1,000) area radiating from that property.”

-14-

cross-examined about the information he utilized in preparing the map. Moreover, Ms.

Yelton testified as to the accuracy of the map, and Sgt. Crawford said that the school and

school signs were visible from Lynn Garden Drive. The jury was allowed to use common

sense in evaluating the information and witness’s testimony in determining whether the gas

station was within 1000 feet of the buffer area of the school. See State v. Calvin Eugene

Bryant, Jr., No. M2009-01718-CCA-R3-CD, 2010 WL 432487, at *11-13 (Tenn. Crim. App.

Nov. 1, 2010), perm. app. denied, (Tenn. Apr. 13, 2011); see also State v. Lindsey, 208

S.W.3d 432, 444 (Tenn. Crim. App. 2006); State v. Greg Harris, No. E2003-02834-CCA-R3-

CD, 2005 WL 419082, at *8-9 (Tenn. Crim. App. Feb. 23, 2005). We conclude that the

evidence was sufficient to establish that the offense occurred within 1000 feet of school

property.

III. Sanctions for Failure to Preserve Evidence

The Defendant asserts that the trial court erred by denying his request for sanctions

against the State for failure to preserve the identity of the individual seen with the Defendant

at the Sunoco gas station. Specifically, the Defendant contends the trial court should have

issued the instruction outlined in State v. Ferguson, 2 S.W.3d 912 (Tenn. 2010). Often times

throughout the Defendant’s brief, he refers to the white male as the “missing witness” and

notes that he “moved for the ‘missing witness’ rule” at trial. Moreover, in the conclusion

section of his brief, he cites to Tennessee Pattern Jury Instructions—Criminal 42.16, which

deals with an absent material witness. The State responds that the trial court properly denied

the Defendant’s request for sanctions because the Defendant failed to show that the State had

lost or destroyed the evidence.

During the discussion of preliminary matters prior to voir dire, the prosecutor stated

that, in addition to the motion to suppress hearing, “some other hearings” had been

conducted. The trial court replied, “That issue, we had a Ferguson issue. . . . My mind has

slipped on me since that . . . issue first came up. I notice [defense counsel], this morning, had

filed a request for a . . . Ferguson charge as in TPI.”6 The prosecutor relayed the Defendant’s

issue, “It concerns a situation in which [defense counsel] had asked the State to provide him

with the name of the white male that Officer Steve Summey had brief contact with along the

lines of a missing witness type charge.” The prosecutor then referenced a supreme court

opinion, stating that the opinion outlined what the trial court “must find before a missing

6

The Defendant’s request for such an instruction is not included in the record on appeal. However, the trial

court used the word “filed,” indicating a written request. Moreover, following the trial court’s ultimate ruling

on the issue, the trial court confirmed with defense counsel that a written motion requesting the instruction

had been filed.

-15-

witness charge can be given.” The trial court then inquired if the missing witness had been

identified. The prosecutor then, seemingly, summarized the facts from the prior hearing 7 :

Officer Summey has previously testified and would testify, if need be, that he

spoke to this gentlemen briefly; got his name at that time; asked for consent to

search him; searched him and found him to be in possession of money, but no

drugs; and immediately released him and concentrated on [the Defendant].

He never ran a warrants check on this individual, never wrote down this

individual’s name, does not know this individual, and has no way of being able

to recall who this individual is.

And we brought up at the hearing last Wednesday or Thursday, our

position would be that if anybody knows who this person might be it would be

[the Defendant], since it’s our contention [the Defendant] was meeting him up

there for the purposes of a transaction. It was apparent to the officers that they

knew one another.

The trial court then referenced Tennessee Pattern Jury Instructions—Criminal 42.23, dealing

with the State’s duty to preserve evidence taken from Ferguson. The trial court later noted,

“That’s a missing witness issue there. . . . Ferguson is a different animal, I believe.” The

parties agreed to defer the matter until later.

Following the initial charge to the jury, the trial court asked, “When [are] we going

to have to address this Ferguson issue?” The prosecutor said, “I think at charge time,” and

defense counsel agreed. The trial court explained, “Now, here the charge is set out in the

TPI. Even though you’ve given me a suggested charge, if I give the charge, I’ll give Charge

42.23.” Addressing the steps outlined in Ferguson “that a trial judge must take in deciding

whether or not this charge should be given,” the trial court noted that “it looks like the State’s

relying upon circumstantial evidence on the money this other fellow had, so I would have to

consider that[.]” Later, the trial court discussed that one of the factors to be considered was

“the relative strength of the case.” The parties indicated that the issue would be dealt with

following the presentation of further proof.

7

In a footnote, the State argues for waiver of this issue because no copy of a transcript of this previous

hearing is included in the appellate record. However, because the majority of the argument and proof on the

issue was developed at trial and because the trial court made its ruling on the issue at trial, and those events

being transcribed, we deem the record sufficient for our review of the issue.

-16-

When court reconvened the following morning, the prosecutor provided the court with

a copy of an opinion from this court, State v. Timothy Dewayne Williams, No. W2008-

02730-CCA-R3-CD, 2010 WL 1172206 (Tenn. Crim. App. Mar. 26, 2010), perm. app.

denied, (Tenn. Sept. 2, 2010), arguing that the case was “factually on point as what we have

here.” Both the prosecutor and defense counsel argued the applicability of the Williams case

to the present case. The prosecutor relied upon the Williams opinion for the proposition that

Ferguson only applied to the loss or destruction of exculpatory evidence, not to the failure

to interview a witness. Defense counsel responded that the officers in this case did in fact

interview the witness but failed to retain any identifying information. The trial court

confirmed with counsel that they wanted to address the matter later.

Finally, following the conclusion of the State’s proof, the trial court heard more

argument on the Ferguson issue and made a ruling. Defense counsel confirmed that there

was no evidence of any intentional wrongdoing on the part of the State in failing to maintain

the witness’s information. Addressing the exculpatory nature of the unidentified witness’s

testimony, defense counsel argued that he was the only other person who could testify about

the circumstances leading up to the Defendant’s arrest. Defense counsel argued that, based

upon his conversations with the Defendant, he believed that the unidentified witness would

deny any eye contact with the Defendant or that any communication occurred inside the store.

Defense counsel also asserted that this unidentified witness would have evidence relevant

to “whether this was a consensual stop [of the Defendant] or if something was said that

would show that . . . [the Defendant] was in fact under the control of the State.” The

prosecutor, again citing to the Williams case, responded that the officers did not destroy or

hide exculpatory evidence, but they simply “failed to interview a witness who was available

to the [D]efendant for interview.” The prosecutor further argued that the witness had no

apparent exculpatory value, and it was the State’s contention that the Defendant possessed

this individual’s contact information, having arranged to meet with this person at the gas

station. Defense counsel responded that the officers did interview the witness but failed to

preserve his information, placing the Defendant in the position of either having to testify on

his own behalf, or not testify and “take the chance and go ahead without any supporting

witness.”

Addressing the Ferguson factors, the trial court determined that there was no showing

of intentional wrongdoing, at most the State was negligent in failing to preserve the

information. Next, the trial court considered the significance of the destroyed evidence and

concluded that the “exculpatory nature of the evidence” was “very tenuous” because there

“[r]eally was not much suggestion what this witness would offer, outside the fact he’s

missing and cannot be identified.” Moreover, the trial court observed that the officers

searched this individual and did not finding anything incriminating; therefore, they had no

further cause to detain him. The trial court also looked at the other evidence used to support

-17-

the convictions, noting that the Defendant had confessed to the crime, giving a “[s]hort,

concise, clear statement after advice of Miranda”; that the Defendant had a large amount of

cocaine, wrapped in individual packages; that one “rock” was placed in his hat and the others

were found inside his buttocks, indicating that an exchange was to occur; and that the

officers testified that they observed suspicious activity.

The trial court then referenced another opinion of this court, State v. Joseph B.

Thompson, No. E2002-00061-CCA-R3-CD, 2003 WL 1202979 (Tenn. Crim. App. Mar. 17,

2003), perm. app. denied, (Tenn. June 30, 2003), stating that the case was “almost directly

[on] point.” The trial court noted the similar facts of that opinion to this case:

In that case the police officers were called to a robbery of a . . . micro

hotel [sic] on Stone Drive in Kingsport, Sullivan County, Tennessee. The

officers went in. There were several people gathering around. The clerk of

the hotel had been severely injured. Some males in the group . . .

It was a crime that drew a crowd, in other words. There were various

other people. And somebody made the comment there, “Jojo didn’t do that.”

It was developed at trial that Joseph B. Thompson was known as “Jojo.” The

police didn’t obtain that information as to the address or name of the person

that made this comment. In fact [the trial court] continued the case on various

occasions to give the defense attempt to locate him [sic]. The police didn’t

write down the name.

Now, the way it went up on appeal, it’s almost directly on point, the

“Jojo” Thompson is, except that they emphasized Brady, and . . . the appellate

court panel did not discuss Ferguson, but they did discuss Brady, basically

finding there was no Brady violation by the police not obtaining that

information and name of the witness.

Regarding the Williams case previously discussed by the parties, the trial court noted

some disagreement with that case that “this could not apply to failure to obtain a name.” The

trial court continued, “But under the circumstances of this case I find there’s no error.”

In conclusion, the trial court determined that it would not impose any sanctions on the

State, declining to issue a Ferguson instruction. On appeal, the Defendant alleges that the

trial court’s ruling on this issue was in error.

-18-

First, we feel constrained to note that throughout these proceedings, the Ferguson

issue and the “missing witness” rule are often referred to interchangeably. They are not the

same thing. The “missing witness rule” as recognized in Tennessee provides that

a party may comment about an absent witness when the evidence shows ‘that

the witness had knowledge of material facts, that a relationship exists between

the witness and the party that would naturally incline the witness to favor the

party and that the missing witness was available to the process of the Court for

trial.

State v. Bough, 152 S.W.3d 453, 463 (Tenn. 2004) (quoting Delk v. State, 590 S.W.2d 435,

440 (Tenn. 1979)). “The missing witness rule is premised on the idea that the absent witness,

‘if produced, would have made an intelligent statement about what was observed.’” Dickey

v. McCord, 63 S.W.3d 714, 722 (Tenn. Ct. App. 2001) (quoting State v. Francis, 669 S.W.2d

85, 89 (Tenn. 1984)).

The “missing witness” or “absent material witness” instruction provides:

When it is within the power of the [S]tate or the defendant to produce

a witness who possesses peculiar knowledge concerning facts essential to that

party’s contentions and who is available to one side at the exclusion of the

other, and the party to whom the witness is available fails to call such witness,

an inference arises that the testimony of such witness would have been

unfavorable to the side that should have called or produced such witness.

Whether there was such a witness and whether such an inference has arisen is

for you to decide and if so, you are to determine what weight it shall be given.

[This inference does not apply to the defendant because [he][she] has

a lawful right not to testify and [his][her] failure to testify cannot be

considered for any purpose against [him][her], nor can any inference be drawn

from such fact.]

7 Tennessee Practice, Tennessee Pattern Jury Instructions—Criminal 42.16 (footnotes

omitted). Before the instruction may be given, the party requesting it must establish “that

‘the witness had knowledge of material facts, that a relationship exists between the witness

and the party that would naturally incline the witness to favor the party and that the missing

witness was available to the process of the Court for trial.’” State v. Bigbee, 885 S.W.2d

797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317, 334-35 (1992))

(internal citation and quotation marks omitted). To justify a missing witness instruction, “the

witness who was not called must not have been equally available to both parties.” See State

-19-

v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992) (citing State v. Overton, 644 S.W.2d

416, 417-18 (Tenn. Crim. App. 1982); Bolin v. State, 472 S.W.2d 232, 235 (Tenn. Crim.

App. 1971)); State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim. App. 1988).

Although the Defendant cites to the “missing witness” instruction, Tennessee Pattern

Jury Instructions—Criminal 42.16, in his brief and states that he “moved for the ‘missing

witness’ rule,” it is clear from our review of the transcript that the Defendant requested the

instruction outlined in Ferguson, Tennessee Pattern Jury Instructions—Criminal 42.23.

Briefly, we observe that it was precisely because this witness was not available to either party

at the time of trial and because the Defendant believed the witness’s testimony would be

favorable to the defense, that he sought sanctions against the State for failing to preserve this

evidence. The “missing witness” rule was inapplicable to the present case. Moreover, even

without the instruction, we note that in closing arguments, defense counsel was able to argue

the effect of this individual’s absence to the jury. We decline to address this rule any further.

We turn to the issue at hand, the refusal of the trial court to issue a Ferguson

instruction in its charge to the jury. The Defendant claims that the trial court erred in failing

to instruct the jury on the lost identity of this individual seen with the Defendant at the gas

station. The State disagrees, arguing that the Defendant failed to show that the State lost or

destroyed evidence.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution provides every defendant the right to a fair trial.8 To facilitate this right, a

defendant has a constitutionally protected privilege to request and obtain from the

prosecution evidence that is either material to guilt or relevant to punishment. Brady v.

Maryland, 373 U.S. 83, 87 (1963). Further, the prosecution has a duty to turn over

exculpatory evidence that would raise a reasonable doubt about a defendant’s guilt. United

States v. Agurs, 427 U.S. 97, 110-11 (1976).

In the case of Ferguson, 2 S.W.3d at 916, our state supreme court adopted a test for

courts to use in determining whether the loss or destruction of evidence deprived a defendant

of a fair trial. The initial analytical step in this test for determining whether there was any

duty to preserve evidence was described as follows:

8

“As a general rule, . . . a trial lacks fundamental fairness where there are errors which call into question

the reliability of the outcome.” Ferguson, 2 S.W.3d at 914 n.3 (citing Betts v. Brady, 316 U.S. 455, 462

(1942); Watkins v. State, 393 S.W.2d 141, 144 (Tenn. 1965); Lofton v. State, 898 S.W.2d 246, 248 (Tenn.

Crim. App. 1994)).

-20-

Whatever duty the Constitution imposes on the States to preserve evidence,

that duty must be limited to evidence that might be expected to play a

significant role in the suspect’s defense. To meet this standard of

constitutional materiality, evidence must both possess an exculpatory value

that was apparent before the evidence was destroyed, and be of such a nature

that the defendant would be unable to obtain comparable evidence by other

reasonably available means.

Ferguson, 2 S.W.3d at 917 (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)).

The court explained that if the proof demonstrates the existence of a duty to preserve the

evidence and demonstrates that the State failed in that duty, “the analysis moves to

considerations of several factors which guide the decision regarding the consequences of the

breach.” Id. Accordingly, those factors include: “(1) The degree of negligence involved; (2)

The significance of the destroyed evidence, considered in light of the probative value and

reliability of secondary or substitute evidence that remains available; and (3) The sufficiency

of the other evidence used at trial to support the conviction.” Id. at 917.

If the trial court determines that a trial without the missing evidence would not be

fundamentally fair, then the trial court may dismiss the charges or craft such orders as may

be appropriate to protect the defendant’s right to a fair trial. Id. The court provided that,

“[a]s an example, the trial judge may determine, under the facts and circumstances of the

case, that the defendant’s rights would best be protected by a jury instruction.” Id. The

Ferguson instruction provides:

The State has a duty to gather, preserve, and produce at trial evidence

which may possess exculpatory value. Such evidence must be of such a nature

that the defendant would be unable to obtain comparable evidence through

reasonably available means. The State has no duty to gather or indefinitely

preserve evidence considered by a qualified person to have no exculpatory

value, so that an as yet unknown defendant may later examine the evidence.

If, after considering all of the proof, you find that the State failed to

gather or preserve evidence, the contents or qualities of which are in issue and

the production of which would more probably than not be of benefit to the

defendant, you may infer that the absent evidence would be favorable to the

defendant.

Id. at 917 n.11; see also 7 Tennessee Practice, Tennessee Pattern Jury Instructions—Criminal

42.23 (footnote omitted).

-21-

We apply an abuse of discretion standard to the review of a trial court’s decision under

Ferguson. See State v. Angela M. Merriman, No. M2011-01682-CCA-R3-CD, 2012 WL

524474, at *1-2 (Tenn. Crim. App. Feb. 17, 2012), perm. app. granted, (Tenn. June 21,

2012). At the outset, we agree with the Defendant that this case is distinguishable from

Williams because here the officers did interview the witness but failed to maintain this

witness’s identifying information. Nevertheless, the initial analytical step outlined by the

Ferguson court incorporates a Brady analysis. See Ferguson, 2 S.W.3d at 917 n.9.

The Thompson case cited by the trial court, involving the allegation of a Brady

violation, spoke to the delayed disclosure of evidence in addition to the officer’s failure to

obtain the witness’s identifying information. See 2003 WL 1202979, at *13. In that case,

the facts were as follows:

Officer Osterman, who arrived at the Microtel shortly after Sergeant

Brookshire, testified that it was his duty to make sure that no one entered the

crime scene while the police were conducting the investigation. He stated that

he otherwise took no significant part in the actual investigation of the case.

While standing near the lobby area of the motel, Officer Osterman noticed four

white males standing near the hallway. He heard one of the men say “the only

black man I know is ‘Jo-Jo’ and it wasn’t ‘Jo-Jo.’” At the time Officer

Osterman heard the statement, he had not been informed that the defendant

was a suspect. Some twenty months later, Officer Osterman, during an

interview by the assistant district attorney, for the first time recalled his

knowledge of the conversation. The state immediately informed the defendant

of the statement and the trial court granted a six-month continuance so that the

defendant could investigate its origin.

Id. On appeal, this court held that the record did “not establish that the inability to locate the

witness was the result of the delayed disclosure.” Id. In concluding that no Brady violation

had been established, this court reasoned, “Officer Osterman was unable to provide a

description, other than the fact that he was white, making it unlikely that an earlier disclosure

would have assisted the defendant in identifying the individual.” Id.

Here, the trial court made the following findings regarding Officer Summey’s

interview of the second individual at the gas station:

He was identified and talked to. I don’t think it’s been—come out directly

what was said at the time that they talked, but the officer that was interviewing

the unidentified white male did take his name. There’s no indication it was

written down, but he took his name. And I think that’s been admitted to. And

-22-

the white unidentified male was released from any further detention or stop.

His name is unknown at this time. It was unknown prior to trial.

The attorney was—was informed of the . . . unidentified white male, but

the State could not force—or could not fin[d] any information as to the name,

location, address, tag number, driver’s license number, or anything of that

nature. So the unidentified white male is lost.

The record reveals that Officer Summey did interview the witness and obtained some

identifying information; however, the record is devoid of any evidence that the officer

memorialized this information in writing or otherwise. Officer Summey was unable to

provide any information about this individual from his memory. Nevertheless, this case is

factually distinguishable from Thompson where the officer in that case was not the

investigating officer and only overheard a witness present at the scene. Here, the officers

were investigating a suspected drug deal when they separated the two individuals to ask

questions of them. Not only was this unidentified white male interviewed, but evidence

obtained during the search of this man was used against the Defendant at trial. Moreover,

based upon the facts as they developed, this individual could have likewise been charged as

a participant in the attempted deal at the gas station. Clearly, the identity of this individual

was material to the defense.9 Accordingly, the State had a duty to preserve the evidence, and

a violation of Brady did occur.

Nonetheless, the remaining factors of Ferguson do not provide the Defendant with

relief. The trial court found that the State was at most negligent, there being no evidence of

any intentional wrongdoing; that the lost or destroyed evidence was of minimal significance;

and that the evidence adduced was sufficient to support the Defendant’s convictions. The

trial court observed that the officers searched this individual and did not find anything

incriminating; therefore, they had no further cause to detain him. The trial court also looked

at the other evidence used to support the convictions, noting the Defendant confessed; the

Defendant had a large amount of individually-wrapped cocaine packages; the location of the

cocaine packages on the Defendant’s person; and the officers’ testimony of suspicious

activity. Thus, even though we conclude that the State failed in its duty to preserve evidence,

we cannot say that the trial court abused its discretion by denying the Defendant’s request

for a Ferguson instruction.

9

In order to establish a Brady violation, a defendant must show that he or she requested the information, the

State suppressed the information, the information was favorable to his or her defense, and the information

was material. State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Evidence is “material” only if there is a

reasonable probability that the result of the proceeding would have been different had the evidence been

disclosed to the defense. United States v. Bagley, 473 U.S. 667, 682 (1985).

-23-

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court.

_________________________________

D. KELLY THOMAS, JR., JUDGE

-24-