State of Tennessee v. Wade Payne

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 3, 2011

STATE OF TENNESSEE v. WADE PAYNE

Direct Appeal from the Criminal Court for Shelby County

No. 09-03633 James M. Lammey, Jr., Judge

No. W2010-01735-CCA-R3-CD - Filed January 17, 2012

A Shelby County Criminal Court jury convicted the appellant, Wade Payne, of selling less

than .5 grams of cocaine, possessing cocaine, and possessing less than .5 grams of cocaine

with the intent to sell. The three convictions were merged into a single conviction for selling

cocaine, for which the appellant received a sentence of fifteen years incarceration in the

Tennessee Department of Correction. On appeal, the appellant contends that the State failed

to sufficiently establish a chain of custody for the cocaine. He also contends that the trial

court erred by admitting the testimony of an officer regarding the preliminary testing of the

cocaine and in admitting recordings of telephone calls made by the appellant while he was

in jail. Further, the appellant challenges the sufficiency of the evidence supporting his

conviction. Upon review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,

J R., J., joined. D AVID H. W ELLES, S P.J., not participating.

Barry W. Kuhn (on appeal) and Jennifer H. Case (at trial), Memphis, Tennessee, for the

appellant, Wade Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree,

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

OPINION

I. Factual Background

The proof adduced at trial revealed that on the afternoon of June 12, 2009, undercover

Memphis Police Detective Shawn May was on the sidewalk in front of a store near the

intersection of Kerr and Marjorie, an area known for narcotics activity. The appellant

approached Detective May and asked what he wanted. Detective May responded that he

wanted a “twinkie” of “hard,” which meant a .1 to .2 gram rock of crack cocaine costing

twenty dollars. The appellant agreed to obtain the drugs for Detective May, and the officer

gave the appellant twenty dollars. The appellant went behind a carwash and returned after

a couple of minutes with crack cocaine, which he handed to Detective May. The appellant

said that he would be in the area if Detective May needed anything in the future. Detective

May made a video recording of the appellant handing him the drugs, but the recording did

not capture him paying the appellant.

In the early afternoon hours of June 17, 2009, Detective May returned to the store near

the intersection of Kerr and Marjorie. The appellant got into Detective May’s vehicle, and

Detective May said that he wanted twenty dollars’ worth of crack cocaine. The appellant

directed Detective May to a location off Waldorf. When they arrived, Detective May gave

the appellant twenty dollars. The appellant went into a residence, returned a couple of

minutes later with crack cocaine, and gave the drugs to Detective May. Detective May then

drove the appellant back to the store. Detective May’s video recording captured little of this

transaction.

After each purchase, Detective May put the drugs in a small bag that he numbered and

placed in a box that was hidden in his car. At the end of each day, he went to an “offsite”

location and wrote a report documenting the purchase. He put the bags containing the

purchased drugs in manila property envelopes and placed the envelopes in a secured evidence

mailbox, for which Anthony Godwin, the Memphis Police Department evidence custodian,

had the only key.

When Officer Godwin retrieved the evidence collected by Detective May on June 12,

2009, both the brown envelope and the small plastic bag inside the envelope were sealed. The

substance inside the bag weighed less than .1 gram and preliminarily tested positive for

cocaine. After testing, Officer Godwin sealed the plastic bag and gave it to Detective

Jonathon Clapp, who took the evidence to the police property room. When Officer Godwin

retrieved the substance obtained by Detective May on June 17, both the brown property

envelope and the small plastic bag inside the envelope were sealed. Officer Godwin

removed the substance from the bag; it weighed .1 gram and preliminarily tested positive for

cocaine. Thereafter, he placed the substance in a plastic bag, sealed it, put it in an evidence

bag, and gave it to Detective Oslanzi, who took the evidence to the property room.

On November 18, 2009, Detective Louis Brown took the evidence from both

purchases to the Tennessee Bureau of Investigation (TBI) for testing. The items were sealed

-2-

in a brown package that Detective Brown placed into a larger plastic envelope, which he then

sealed and initialed.

When TBI crime laboratory forensic scientist Melanie Johnson opened the larger,

sealed plastic bag, she noticed that the yellow envelopes inside were fastened but were not

sealed with tape; however, the clear bags inside the envelopes were sealed. Testing revealed

that the substance bought on June 17 weighed .09 grams. The substance bought on June 12,

which she described as “residue,” weighed 0 grams. Both substances tested positive for

cocaine base, the “rock-like form” of cocaine.

Rachel Bowen, a Shelby County Sheriff’s Department employee, explained that after

an individual is arrested, he or she is assigned an “R&I number.” Shelby County Sheriff’s

Deputy Michael Harber testified when a telephone call is made by a jail inmate, the call is

recorded and identified by the inmate’s R&I number. Deputy Harber retrieved recordings

of calls the appellant made from jail on October 14, 2009. The recordings, which were

played for the jury, reflected that the appellant spoke with his mother, a female, and a male.

During the calls, the appellant stated that he had seen the recordings of the undercover drug

buys and that his face was never shown on the “films” of the buys. He said, “I know it was

me, but they don’t know.”

The defense did not put on any proof at trial.

Based upon the foregoing, the jury convicted the appellant of selling less than .5

grams of cocaine, possessing cocaine, and possessing less than .5 grams of cocaine with the

intent to sell on June 12, 2009.1 The trial court merged the convictions and sentenced the

appellant to fifteen years.

II. Analysis

A. Evidentiary Issues

On appeal, the appellant argues that the State did not establish the chain of custody

for the cocaine. The appellant further complains that the trial court erred in allowing Officer

Godwin to testify regarding the results of a preliminary test on the cocaine. The appellant

also contends that the trial court erred in allowing into evidence the recordings of the

appellant’s jail telephone calls. We will address each of these issues in turn.

1

Because the jury was unable to reach a unanimous verdict on the offenses occurring on June 17,

2009, the trial court declared a mistrial as to those charges.

-3-

The admissibility of evidence lies within the sound discretion of the trial court. State

v. Carruthers, 35 S.W.3d 516, 574 (Tenn. 2000). The trial court’s discretion in determining

the admissibility of evidence is generally circumscribed by the Tennessee Rules of Evidence.

See State v. Young, 196 S.W.3d 85, 105 (Tenn. 2006). An appellate court will not interfere

with the lower court’s exercise of that discretion absent a clear showing of abuse. See State

v. Turner, 352 S.W.3d 425, 428 (Tenn. 2011).

1. Chain of Custody

First, we will address the appellant’s argument that the State failed to sufficiently

establish the chain of custody for the cocaine and that there was “clear evidence of

tampering.” Generally, Tennessee Rule of Evidence 901 governs the authentication of

evidence. In order to admit physical evidence, the party offering the evidence must either

introduce a witness who is able to identify the evidence or establish an unbroken chain of

custody. State v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998). “Even though

each link in the chain of custody should be sufficiently established, this rule does not require

that the identity of tangible evidence be proven beyond all possibility of doubt; nor should

the State be required to establish facts which exclude every possibility of tampering.” State

v. Cannon, 254 S.W.3d 287, 296 (Tenn. 2008). However, the circumstances must establish

a reasonable assurance of the identity of the evidence. State v. Kilburn, 782 S.W.2d 199, 203

(Tenn. Crim. App. 1989). “The purpose of the chain of custody is to ‘demonstrate that there

has been no tampering, loss, substitution, or mistake with respect to the evidence.’” State

v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000) (quoting State v. Braden, 867 S.W.2d 750, 759

(Tenn. Crim. App. 1993)). Whether the required chain of custody has been sufficiently

established to justify the admission of evidence is a matter committed to the sound discretion

of the trial court, and the court’s determination will not be overturned in the absence of a

clearly mistaken exercise of that discretion. Holbrooks, 983 S.W.2d at 701.

The appellant maintains that “[t]he cocaine was in a small, sealed plastic bag inside

a sealed manila envelope when it was delivered by Officer Brown to the TBI. When Melanie

Johnson received it, the seal had been broken. Therefore, Exhibit #5 [the cocaine] should

not have been admitted into evidence.” (Emphasis omitted). The State argues that the

testimony sufficiently established the chain of custody.

In the instant case, Detective May testified that, after each purchase of cocaine from

the appellant, he took the cocaine to an “offsite location” where he put the cocaine into a

brown paper bag, labeled the bag, and put the bag into a secured evidence locker. Officer

Godwin testified that on June 16, he retrieved from the secured evidence locker the substance

that was bought by Detective May on June 12; the outer brown envelope and the small plastic

bag inside the envelope were sealed. Officer Godwin tested the substance, which was

-4-

positive for cocaine. Officer Godwin resealed the evidence. Detective Clapp, who was

helping Officer Godwin, filled out the plastic property envelope and submitted the evidence

to the property clerk. On June 18, Officer Godwin retrieved from the secured locker the

substance that was bought by Detective May on June 17. The small plastic bag inside the

brown envelope was sealed. Officer Godwin tested the substance, which was positive for

cocaine. Officer Godwin turned the evidence over to Detective Oslanzi, who took the

evidence to the property clerk. Detective Brown took both substances to the TBI.2 TBI

scientist Melanie Johnson said that the plastic outer bag was sealed and that the yellow

envelopes inside were fastened but not sealed with tape.

The appellant contended that there was evidence of tampering. The trial court

responded:

I think what you’re referring to is . . . the property and evidence

for MPD was not sealed; but the contents on the inside were

sealed - the clear plastic bag for each individual rock that was

contained in it was in a sealed state; and there’s no evidence that

that seal was ever broken until [Johnson] got it. So, I still - I’ll

note your exception, but I’m going to show it admissible at this

time.

We agree with the trial court that the evidence was sufficient to “reasonably establish the

identity of the evidence and its integrity.” Scott, 33 S.W.3d at 760. Accordingly, we

conclude that the trial court did not abuse its discretion in admitting the cocaine. This issue

is without merit.

2. Testimony Regarding Test on Cocaine

Next, the appellant contends that the trial court erred by allowing Officer Godwin to

testify about the preliminary test he performed on the substances bought by Officer May,

which revealed the substances were cocaine. The appellant argues that the testimony did not

meet the requirements of Tennessee Rules of Evidence 702 and 703 or McDaniel v. CXS

Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997).

Generally, expert testimony must be both relevant and reliable before it may be

admitted. McDaniel, 955 S.W.2d at 265. The trial court has broad discretion in determining

the qualifications, admissibility, relevancy, and competency of expert testimony. See State

v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). As such, this court will not overturn the trial

2

At trial, both substances were collectively identified as Exhibit 5.

-5-

court’s ruling on the admissibility of expert testimony absent an abuse of that discretion. See

State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

Tennessee Rule of Evidence 702 provides:

If scientific, technical, or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify

in the form of an opinion or otherwise.

Tennessee Rule of Evidence 703 provides:

The facts or data in the particular case upon which an expert

bases an opinion or inference may be those perceived by or

made known to the expert at or before the hearing. If of a type

reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or

data need not be admissible in evidence. Facts or data that are

otherwise inadmissible shall not be disclosed to the jury by the

proponent of the opinion or inference unless the court

determines that their probative value in assisting the jury to

evaluate the expert’s opinion substantially outweighs their

prejudicial effect. The court shall disallow testimony in the

form of an opinion or inference if the underlying facts or data

indicate lack of trustworthiness.

In the instant case, Officer Godwin specifically testified that he was not a chemist nor

was he an expert in the chemical testing of drugs. Regardless, he testified that he had

attended a Drug Enforcement Agency (DEA) narcotics school. While at the school, Searcy

Laboratories, the makers of the Scott Reagent Test Officer Godwin used, instructed the

attendees how to perform the test. Officer Godwin stated that the attendees were then tested

to determine their proficiency in performing the Scott Reagent Test, and Officer Godwin was

certified to perform the test.

Officer Godwin described the Scott Reagent Test as a three-step process. He

explained that he started by placing a small amount of the substance into the test kit. He said

that he “pop[ped] the first ampule,” which tinted the substance blue. He stated that the

appearance of the substance did not change much when he broke the second ampule, but that

when he broke the third ampule, the substance “dissolve[d], and . . . a pink over blue

-6-

solution, [indicated] a positive preliminary test for cocaine.”

Officer Godwin testified that he had never received a false positive while using the

Scott Reagent Test. However, he acknowledged that for a higher level of scientific

reliability, law enforcement sent the substance to the TBI for further testing. Subsequently,

TBI Special Agent Johnson tested both substances and found that the substances contained

cocaine base.

This court has previously stated:

Ordinarily, law enforcement officers in arrests for illegal

drug offenses will run a field test on suspected controlled

substances for an indication as to whether the suspected

substance is positive of a controlled substance. Thus, if the field

test is positive, then the suspected controlled substances are

subjected to a chemical or scientific analysis for confirmation

and utilized at trial. . . . Law enforcement officers may, based

upon proper training, testify as to the results of field tests

indicating the existence of suspected controlled substances.

State v. Anderson, 644 S.W.2d 423, 424 (Tenn. Crim. App.),

per. app. dismissed (Tenn. 1982); State v. Hill, 638 S.W.2d 827,

830 (Tenn. Crim. App. 1982).

State v. Mikel Primm, No. 01C01-9712-CC-00571, 1998 WL 849305, at *2 (Tenn. Crim.

App. at Nashville, Dec. 9, 1998). In light of Officer Godwin’s testimony that he was

certified to perform the test, that the test was a preliminary step only, and that the results

were later confirmed by the TBI, we conclude that the trial court did not err in admitting the

testimony.

3. Jail Telephone Calls

The appellant complains that the trial court erred in allowing the jury to hear

recordings of two telephone calls that the appellant made from the Shelby County Jail on

October 14, 2009. The appellant argues that the statements on the recordings do not clearly

reflect whether they refer to the events of June 12 or June 17. The appellant argues that the

calls are not relevant under Tennessee Rule of Evidence 402. He also maintains that there

was insufficient proof of the identities of either caller to comply with Tennessee Rule of

Evidence 901(b)(6). He further contends that there was no proof that the recordings “are

accurate reproductions of the subject conversations.”

-7-

a. Relevance

First, we will address the appellant’s complaint regarding the relevance of the calls.

Generally, to be admissible evidence must be relevant to some issue at trial. See Tenn. R.

Evid. 402. “‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401; see also State v.

Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). However, even relevant evidence “may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

It is within the trial court’s discretion to determine whether the proffered evidence is

relevant; thus, we will not overturn the trial court’s decision absent an abuse of discretion.

See State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995). “Under this standard,

we will not reverse unless the trial court applied an incorrect legal standard, or reached a

decision which is against logic or reasoning that caused an injustice to the party

complaining.” State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008) (internal quotations and

citations omitted).

In the instant case, the recordings reflect that on October 14, 2009, the appellant called

his mother. He told her that he had been to court and had seen the evidence regarding the

charges against him. He said the State did not have much evidence against him, noting that

his face was not captured on either of the“films” of the two drug transactions. The appellant

said that he knew he had taken part in the buys but that the camera failed to capture him

either time. Clearly, the calls are relevant to the appellant’s guilt.

The appellant also argues that the statements on the recordings were unfairly

prejudicial because each call began with a statement that the call was made by an inmate at

the Shelby County Jail, the appellant used obscenities during the calls, and the appellant

referred to the effect of his “prior record” on any potential sentence he might receive. In

support of this argument, the appellant cites State v. Spike Hedgecoth, No. E2002-01869-

CCA-R3-CD, 2003 WL 22668873 (Tenn. Crim. App. at Knoxville, Nov. 12, 2003).

Hedgecoth was convicted of three counts of theft. Id. at *1. At trial, the State submitted an

audiotape recording of a telephone call made by Hedgecoth while he was incarcerated. Id.

at *3. This court noted that the recording reflected that Hedgecoth was in jail at the time of

the call, that such information was prejudicial, and that the information should have been

redacted. Id. at *4. This court concluded that the probative value of the recording was

outweighed by the prejudicial effect of Hedgecoth’s “tone of voice, his reference to other

crimes, his cursing, and his use of racial epithets.” Id. at **4-5. However, this court further

stated that such error was harmless. Id. at *4.

-8-

We conclude that Hedgecoth is distinguishable from the instant case. We

acknowledge that during the calls in the instant case, the appellant used foul language and

referenced his prior criminal record. However, unlike Hedgecoth, the appellant confesses

to the crimes during the calls, making the recordings highly probative to the issue of his guilt.

Thus, we conclude that the probative value of the telephone conversations was not

outweighed by the prejudicial effect.

b. Authentication

Next, we turn to the appellant’s contention that the recordings of the calls were not

properly authenticated. Tennessee Rule of Evidence 901 provides that authentication may

be made by “[i]dentification of a voice, whether heard firsthand or through mechanical or

electronic transmission or recording, by opinion based upon hearing the voice at any time

under circumstances connecting it with the alleged speaker.” Tenn. R. Evid. 901(b)(5).

Specifically, one authority has noted that

if the witness has, at the time of testifying, adequate familiarity

with the speaker’s voice, he or she may opine whether the

disputed testimony is the alleged speaker’s voice, Rule

901(b)(5). Familiarity can be gained in a relatively short period

of time, and as the result of conversations occurring before or

after the conversation that was identified.

Neil P. Cohen et al., Tennessee Law of Evidence § 9.01[7], at 9-11 (LEXIS publishing, 5th

ed. 2005) (footnote omitted). “For authentication purposes, voice identification by a witness

need not be certain; it is sufficient if the witness thinks he can identify the voice and express

his opinion.” Stroup v. State, 552 S.W.2d 418, 420 (Tenn. Crim App. 1977).

In the instant case, Detective May testified that he listened to the recordings of the

calls and that, from his prior conversations with the appellant, he was able to identify the

appellant as the caller. Further, the caller was identified as “Wade Payne,” and the calls were

made by an individual with the appellant’s R&I number. Therefore, we conclude that the

caller was sufficiently identified as the appellant.

The appellant also argues that the statements on the recordings do not clearly reflect

whether they refer to the events of June 12 or June 17. We disagree. During the calls, the

appellant said that one of the films depicted him from only the shoulder down. The video

of the June 12 buy depicted the appellant’s shoulder but not his face. Additionally, the

appellant also said during the calls that he could not be seen in the other film. The appellant

cannot be seen in the recording of the June 17 drug buy.

-9-

Further, the appellant argues that there is no evidence “that the recordings are an

accurate account of the conversations contained therein.” We disagree. Officer Harber

testified that every call made by an inmate is recorded on a database on a hard drive and that

the calls are cataloged by the inmate’s R&I number. Officer Harber testified that he

downloaded onto a CD the calls which were saved on the hard drive under the appellant’s

R&I number. The trial court stated, “I don’t think he’s required to have to listen to every

word of every conversation.”

The appellant objected, noting that there had been no testimony about the accuracy

of the recording device. The court stated:

I don’t think he has to be an expert in recording devices in order

for this to be played. It’s something that can be played on an

ordinary . . . disc player. I wouldn’t see where someone would

have to have an expertise in that area. . . . I think any one of us

could probably make a copy of an audio off of a computer onto

a disc. I mean that’s pretty common knowledge.

Rule 901(b)(9) provides that authentication may be established by “[e]vidence

describing a process or system used to produce a result and showing that the process or

system produces an accurate result.” This provision may be used to authenticate tape

recordings. Cohen et al., Tennessee Law of Evidence § 9.01[11], at 9-14. However, due to

the commonplace nature of such processes, “one rarely hears an objection to their

admissibility on the basis that the process itself is unreliable. . . . [For example,] Rule

901(b)(9) would permit [a tape recording] to be authenticated upon sufficient proof of the

reliability of the machine and the quality of its product.” Id. We conclude that the trial court

did not abuse its discretion in finding that the audiotapes were properly authenticated.

B. Sufficiency of the Evidence

Finally, the appellant argues that the evidence was insufficient to establish his guilt.

On appeal, a jury conviction removes the presumption of the appellant’s innocence and

replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this

court why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

-10-

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

Our criminal code provides that it is a Class B felony “for a defendant to knowingly

. . . [s]ell a controlled substance,” such as cocaine. Tenn. Code Ann. § 39-17-417(a)(3) and

(c)(1). The appellant does not argue that the substance was not cocaine or that he did not sell

the substance to Officer May. Instead, the appellant reasserts his claim regarding chain of

custody, arguing that

[t]he key element to proving guilt would be to connect the item

introduced as part of Exhibit #5 [namely the cocaine], that was

in the small plastic bag inside the envelope dated June 12, as the

item that Officer May bought from [the appellant]. Officer

May’s testimony does not do that.

In other words, the appellant maintains that because the cocaine in Exhibit 5 was not properly

identified as the same cocaine purchased from the appellant on June 12, the evidence was

insufficient to sustain his conviction. We disagree.

Officer May testified that after he purchased the cocaine from the appellant on June

12, he placed the cocaine in an evidence bag, sealed the bag, and placed the bag in a secured

evidence lockbox. The evidence was later retrieved by Officer Godwin, who turned it over

to Detective Clapp. Detective Clapp took the evidence to the TBI for testing, which revealed

that the substance was cocaine. We conclude that the evidence was sufficient to sustain the

appellant’s conviction.

III. Conclusion

Based upon the foregoing, we conclude that the State properly established the chain

of custody for the cocaine, the trial court did not err by allowing Officer Godwin to testify

regarding the preliminary test results, the recordings of the telephone calls were properly

authenticated, and the evidence was sufficient to sustain the appellant’s conviction for selling

less than .5 grams of cocaine. Accordingly, we affirm the judgments of the trial court.

_________________________________

NORMA McGEE OGLE, JUDGE

-11-