State of Tennessee v. Gary Thomas Reed

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 23, 2010

STATE OF TENNESSEE v. GARY THOMAS REED

Appeal from the Criminal Court for Cumberland County

No. 08-0107A Leon Burns, Judge

No. E2009-02238-CCA-R3-CD - Filed May 12, 2011

Following a jury trial, the Defendant, Gary Thomas Reed, was convicted of initiating the

process of manufacturing methamphetamine, a Class B felony. The Defendant was

sentenced as a Range II, multiple offender to 16 years in the Tennessee Department of

Correction. In this appeal as of right, the Defendant contends (1) that the evidence was

insufficient to sustain his conviction; (2) that the trial court erred in permitting expert

testimony; (3) that the trial court erred in permitting lay opinion testimony; (4) that the trial

court erred in permitting testimony from a witness who had not been disclosed to defense

counsel; (5) that the trial court erred by failing to permit testimony from a potential defense

witness; (6) that the trial court erred in denying the motion for new trial; and (7) that the trial

court erred in sentencing the Defendant. Following our review, we affirm the conviction and

sentence but remand the case for the entry of a corrected judgment consistent with this

opinion.

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

Case Remanded.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which D AVID H. W ELLES and

N ORMA M CG EE O GLE, JJ., joined.

David Neal Brady, District Public Defender and John B. Nisbet, III, Assistant Public

Defender (on appeal), and Howard L. Upchurch, Pikeville, Tennessee (at trial), for the

appellant, Gary Thomas Reed.

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

Attorney General; Randall A. York, District Attorney General; and Amanda M. Hunter,

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

OPINION

Investigator Jeff Slayton of the Cumberland County Sheriff’s Department testified that

he had participated in approximately 20 methamphetamine laboratory investigations in the

past year. As a part of Investigator Slayton’s training for his position, he completed a course

on clandestine laboratory safety through the Drug Enforcement Administration. In this

course, he “learned what components were used to manufacture methamphetamine and how

those components combined actually produced meth.” He also “learned how to safely

investigate clandestine laboratories, how to go in and dismantle one so it could be cleaned

up by hazardous material groups.”

Investigator Slayton testified that after receiving some indication that a

methamphetamine laboratory was present on a property located on Lynch Road, he and his

team began surveillance of the property on June 3, 2008. There were “several abandoned

trailers” parked on the property that appeared to be uninhabited, but there was also another

trailer located on the property that the Defendant appeared to be living in. Jerry King owned

the property and the inhabited residence. While there was no electricity supplied by the

utility district, there was a generator located at the back of the residence. However, the water

from the utility district had been connected using the Defendant’s name. Everett Bolin, Jr.,

of the Crab Orchard Utility District testified that the “meter-reading history report” for the

property on Lynch Road reflected that the Defendant requested water for the property in his

name on June 5, 2008. The last reading of the meter was made on September 12, 2008.

Investigator Slayton testified that he and other members of his team stayed at the

property observing the residence from the woods “in the nighttime hours” until the “early

morning hours” as a part of their surveillance. While Investigator Slayton was not physically

staying on the property every day, the surveillance team utilized cameras to record the

activities on the property. When Investigator Slayton was present, he was able to identify the

Defendant and “numerous individuals that were entering and leaving” the residence.

However, the Defendant was the person he “viewed most often entering and leaving” the

residence. The Defendant spent the night at the residence and was observed “riding a

four-wheeler” and “doing something with some equipment outside of the residence” on the

property.

On June 25, 2008, a warrant was obtained to search the residence. Based upon the

surveillance of the residence, Investigator Slayton believed there would be “anywhere from

12 to possibly 16 people at that residence” when they executed the search warrant. Several

hours before they entered the residence, Investigator Slayton observed the Defendant

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“continually go to a back bedroom” inside the residence. When they entered the residence,

there were 13 people present, including the Defendant and his co-defendant, Jessica Hale.1

Sergeant Rick Lanzilotta of the Cumberland County Sheriff’s Department testified

that he participated in the execution of the search warrant on the property located on Lynch

Road on June 25, 2008. When he entered the residence, he proceeded to the back bedroom.

As he approached the bedroom, the Defendant slammed the bedroom door in his face. After

Sergeant Lanzilotta broke the door down, he arrested the Defendant.

Investigator Casey Cox of the Cumberland County Sheriff’s Department testified that

he had been involved with 85 to 90 percent of the methamphetamine laboratory

investigations in Cumberland County and that all of his training and certifications have

enabled him to properly investigate such cases. He stated that a person can manufacture

methamphetamine in more than one way but that in Cumberland County, he found that red

phosphorus laboratories were more popular. Investigator Cox explained that red

phosphorous laboratories manufacture methamphetamine using ephedrine or

psuedoephedrine, iodine crystals, and red phosphorous. He stated that the most important

ingredient in the process is ephedrine or psuedoephedrine because it is the only ingredient

in the manufacturing process that must be present.

As relevant to this case, Investigator Cox stated that in order to use the most important

ingredient, psuedoephedrine, the manufacturer must break the “binder away from the pill.”

The binder can be removed by mixing the tablet with Heet, which will dilute the pill, forming

what is commonly called an ephedrine wash. The ephedrine wash is then poured through a

filtering system, which separates the binder from the liquified ephedrine. Generally,

manufacturers use coffee filters to separate the binder. The resulting liquid can be stored in

any type of container, such as a Mason jar.

Investigator Cox explained that the three ingredients, ephedrine, iodine crystals, and

red phosphorous, are then “combined together and heated,” creating a methamphetamine

base. The methamphetamine base can be mixed with a solvent, such as camp fuel and then

filtered to remove the methamphetamine crystals, the final product. Manufacturers may also

create a gas using a homemade generating system and muriatic acid that will heat the base,

causing the methamphetamine crystals to form. The base is then filtered, removing the

crystals. The crystals can be whitened with acetone, which makes the crystals appear to have

a higher concentration. The crystals are generally weighed and placed into small bags for

selling purposes.

1

She pled guilty to attempt to manufacture methamphetamine and received a six-year sentence, suspended

to probation.

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Investigator Cox participated in the investigation of the Defendant’s case and

collected the evidence found in the back bedroom of the residence. He found a black bag

with pink lining on the bed. The bag contained a digital scale, a turkey baster, rubber gloves,

a small container, a rubber stopper with green duct tape on top with a small hole in the top,

rubber tubing, clear plastic tubing, pH strips, Mason jar lids, a bottle of Visine that contained

muriatic acid, and a small glass pipe. In the plastic container with the pink lid, he found red

phosphorous. He found coffee filters that appeared to be “damp” around the edges and a

clear plastic bag that contained left-over red phosphorous.

Underneath the dresser in the bedroom, Investigator Cox found several four-quart

Mason jars. The jars contained an ephedrine wash. One of the jars was a “pinkish-red

color.” He explained that the substance was a different color because the manufacturer had

probably used a Sudafed pill, which contained a dye, to create the wash. He admitted that

he was unable to conclusively determine when the ephedrine wash was created or how long

the jars had been in the bedroom. He stated that the items found in the room were commonly

used in the manufacturing process of methamphetamine and that the “only legitimate

purpose” for the presence of the items was to manufacture methamphetamine.

Also inside the bedroom, he found a leaf blower, three or four chainsaws, a “toy

bulldog” attached to the mirror, mail addressed to the Defendant, and a binder that contained

paperwork and documents bearing the Defendant’s name. He stated that the Defendant was

commonly referred to as “Bulldog.”

Janice Hall testified for the Defendant and stated that she worked for the Defendant,

who owned his own landscaping business. She stated that the Defendant lived on Moonlight

Trail and that the property on Lynch Road was used to store his business equipment. Ms.

Hall testified that she sold a black bag with pink lining to the co-defendant at a yard sale.

Ms. Hall stated that she saw the co-defendant with the bag approximately two weeks before

the Defendant was arrested. On cross-examination, she admitted that she had a child with

the Defendant’s brother.

Natasha Bowman testified that she also worked for the Defendant and that the

Defendant was living on Moonlight Trail at the time of his arrest. She admitted that he

stored his work equipment on the property on Lynch Road. She stated that everyone who

worked for the Defendant met at the property on Lynch Road at the beginning of the day.

She stated that on June 25, 2008, she had worked with the Defendant in Fairfield Glade

before bringing the equipment back to the property on Lynch Road. She testified that Ms.

Hall was her friend and that Ms. Hall sold her bag to the co-defendant, who was at the

property on Lynch Road when they returned the equipment on June 25, 2008.

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ANALYSIS

I. Sufficiency

The Defendant contends that the evidence was insufficient to sustain his conviction

when, other than his presence in the room, there was no evidence that the Defendant initiated

the process of manufacturing methamphetamine. The Defendant asserts that the bag found

in the bedroom belonged to the co-defendant, who was also found at the residence when the

search warrant was executed, and that mail belonging to the Defendant indicated that he lived

in another location. The State responds that the jury “reasonably inferred the defendant’s

knowing involvement in the manufacturing process that took place in the bedroom.” The

State asserts that the evidence presented at trial reflected that the Defendant “had an ongoing

possessory interest in the trailer” and that the Defendant “used the rear bedroom often

enough for a jury to infer that he was the individual who initiated the chemical process

intended to result in methamphetamine.”

An appellate court’s standard of review when the 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). The 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 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 verdict of guilt 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). “This [standard] applies to findings of

guilt based upon direct evidence, circumstantial evidence, or a combination of [both] direct

and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.

App. 1999).

The Defendant was convicted of initiating the process of manufacturing

methamphetamine in violation Tennessee Code Annotated section 39-17-435. The statute

states, in pertinent part:

(a) It is an offense for a person to knowingly initiate a process intended to

result in the manufacture of any amount of methamphetamine.

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(b) It shall not be a defense to a violation of this section that the chemical

reaction is not complete, that no methamphetamine was actually created, or

that the process would not actually create methamphetamine if completed.

(c) For purposes of this section, “initiates” means to begin the extraction of an

immediate methamphetamine precursor from a commercial product, to begin

the active modification of a commercial product for use in methamphetamine

creation, or to heat or combine any substance or substances that can be used

in methamphetamine creation.

(d) Expert testimony of a qualified law enforcement officer shall be admissible

for the proposition that a particular process can be used to manufacture

methamphetamine. For purposes of this testimony, a rebuttable presumption

is created that any commercially sold product contains or contained the product

that it is represented to contain on its packaging or labels.

Tenn. Code Ann. § 39-17-435(a)-(d).

In the light most favorable to the State, the evidence established that the Defendant

was responsible for providing water to the residence, that the Defendant used the residence

as a meeting place for his business and to store his business equipment, that the Defendant

stayed overnight at the residence on numerous occasions, that mail addressed to the

Defendant was kept at the residence, that the Defendant frequently went into the bedroom

where the materials were found, and that the Defendant attempted to hide in the bedroom

when officers executed the search warrant. The testimony presented at trial also established

that the Defendant’s nickname was Bulldog and that a stuffed bulldog was attached to a

dresser in the bedroom. In addition to the materials found in the bag on the bed, inside the

bedroom underneath the dresser, officers found four Mason jars containing what appeared

to be an ephedrine wash – a process whereby pseudoephedrine, a commercial product, is

broken down to extract a necessary component of methamphetamine. Accordingly, we

conclude that the evidence was sufficient to establish that the Defendant initiated the process

of manufacturing methamphetamine when he began the “extraction of an immediate

methamphetamine precursor from a commercial product.”

II. Expert witness

The Defendant contends that the trial court erroneously permitted Investigator Cox

to testify as an expert regarding the processes used to manufacture methamphetamine when

the evidence established that Investigator Cox was only an expert in dismantling

methamphetamine laboratories, not an expert in the processes used to manufacture

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methamphetamine. The Defendant further contends that the statute authorizing officers to

testify as experts on this subject “guts the evidentiary rules concerning the admission of real

expert testimony” and violates his Sixth Amendment right to confrontation. The State

responds that the Defendant has waived this issue because he failed to object when

Investigator Cox was tendered as an expert witness. The State alternatively contends that the

trial court properly permitted expert testimony from Investigator Cox, who had a “lengthy

and complete history of training and education regarding the production of

methamphetamine.”

The record reflects that the Defendant failed to object when Investigator Cox was

tendered as an expert witness. Additionally, the Defendant failed to object to the substance

of Investigator Cox’s testimony regarding the production of methamphetamine. We agree

with the State that the Defendant’s failure to raise a contemporaneous objection to the

tendering of Investigator Cox as an expert witness waives our consideration of the issue on

appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring

relief be granted to a party responsible for an error or who failed to take whatever action was

reasonably available to prevent or nullify the harmful effect of an error.”). The Defendant

does not request plain error review of this issue, and we do not discern a basis for plain error

review given the facts of this case. See Tenn. R. App. P. 36(b).

III. Lay opinion testimony

The Defendant contends that the trial court erroneously permitted lay opinion

testimony from Officer Slatton. The Defendant asserts that Officer Slatton testified that the

Defendant was living in the trailer and that the water had been connected using the

Defendant’s name when he did not have any personal knowledge of these facts. The State

responds that the Defendant has waived this issue for failure to cite any authority in support

of his assertion and for failure to object at trial on the grounds asserted on appeal. The State

alternatively responds that Officer Slayton had personal knowledge of the Defendant’s living

arrangements because he observed the Defendant for countless hours and noted the

Defendant’s “constant comings and goings” at the Lynch Road address before executing the

search warrant.

Contrary to the State’s assertion, the Defendant cited Rules 602 and 701 of the

Tennessee Rules of Evidence as authority in support of his contention. However, defense

counsel did not object to the statement that the Defendant’s name was used to connect the

water from the utility district. We believe that defense counsel objected at trial on the basis

of improper lay opinion testimony regarding the statement that the Defendant was living in

the trailer. Regardless of any waiver for failure to object, the Defendant is not entitled to

relief on either ground.

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If a witness is not testifying as an expert, the witness’s testimony in the form of

opinions or inferences is limited to those opinions or inferences which are

(1) rationally based on the perception of the witness and

(2) helpful to a clear understanding of the witness’s testimony or the

determination of a fact in issue.

Tenn. R. Evid. 701(a)(1)-(2). “Because it is the jury’s duty to draw conclusions from the

evidence presented, a ‘non-expert witness must ordinarily confine his testimony to a narration

of facts based on first-hand knowledge and avoid stating mere personal opinions.’” State v.

Justin Bradley Haynie, No. W2006-01840-CCA-R3-CD, 2007 WL 4335481, at *18 (Tenn.

Crim. App. Dec. 7, 2007), perm. app. denied (Tenn. May 5, 2008) (quoting State v.

Middlebrooks, 840 S.W.2d 317, 330 (Tenn. 1992)). “[T]he admission of lay opinion

testimony is limited to those situations wherein the jury could not readily draw its own

conclusions on the ultimate issue, without the aid of the witness’s opinion testimony.” State

v. McCloud, 310 S.W.3d 851, 865 (Tenn. Crim. App. 2009). Questions regarding the

admission of lay opinion testimony are reviewed using an abuse of discretion standard. Id.

(citing State v. Gray, 960 S.W.2d 598, 606 (Tenn. Crim. App. 1997)).

At trial, Officer Slayton testified on direct examination that the Defendant was living

in the trailer. Officer Slayton also testified on cross-examination that the Defendant’s name

was used to connect the water to the trailer from the utility district. The testimony relative

to the water connection was not based on the witness’s lay opinion as the witness had

investigated the case and discovered this fact at some point. However, the testimony relative

to the Defendant’s living arrangement was a conclusion based upon the witness’s own

observations. This conclusion was not helpful to a clear understanding of the issue of the

control of the premises or the contents within the premises when the jury could “readily draw

its own conclusions on [this] issue, without the aid of the witness’s opinion testimony.” Id.

at 865. Thus, the testimony was improper and should have been excluded when defense

counsel objected to the statement. However, the error in its admission was harmless because

this conclusion was “so readily apparent from the evidence.” See id. (concluding that an

officer’s testimony that the defendant was driving a vehicle was harmless when there was

other direct evidence that established this point at issue in the trial); see also Tenn. R. App.

P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall

not be set aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process.”).

IV. Surprise witness

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The Defendant contends that the trial court erroneously permitted testimony and

documentation from a witness, Mr. Everett Bolin, Jr. from the Crab Orchard Utility District,

whose name was not listed on the indictment and had not been disclosed by the Assistant

District Attorney General prior to trial. The Defendant further contends that he was denied

a fair trial as a result of the trial court’s error because he was prejudiced by the lack of notice

of the permitted testimony and documentation as this was the only evidence that he had any

connection to the trailer where the materials were found. The State responds that the

Defendant has failed to show that the trial court abused its discretion in permitting the

testimony and the document and that the Defendant has failed to show how he was

prejudiced by the lack of notice.

At trial, defense counsel cross-examined Officer Slayton as to whether he had any

proof that the Defendant had used his name to connect the water from the utility district to

the trailer. Defense counsel asked Officer Slayton if he had any bills from the utility district

that reflected that the Defendant was the one person who had the water connected. Defense

counsel also asked Officer Slayton if he was aware if any witnesses from the utility district

were going to testify. Officer Slayton responded that he did not bring any documentation

with him to support his assertion and that he did not know if any witnesses were going to

testify regarding this issue. After the lunch recess, a jury-out hearing was held in which the

Assistant District Attorney General announced that Mr. Bolin from the Crab Orchard Utility

District was present to testify. This hearing was not transcribed. Before Mr. Bolin testified,

defense counsel renewed his objection and requested another hearing for the record. At the

close of the State’s case, another hearing was held on this issue.

At the jury-out hearing, defense counsel argued that the Defendant was prejudiced by

Mr. Bolin’s testimony because he was not given notice of the witness prior to trial. Defense

counsel stated that his defense theory was based on the premise that the State was not calling

any witnesses who could attest that the Defendant had any connections to the trailer. The

Assistant District Attorney General responded that defense counsel opened the door to this

type of testimony when he vigorously cross-examined Officer Slayton on the issue of the

utilities. The trial court denied defense counsel’s motion to strike the testimony and stated,

Well, as I indicated before we came back after the break at lunch, that I would

be allowing Mr. Bolin to testify, and in light of the fact that the issue was

raised by the [D]efendant in questioning about someone being here from the

water department. And I don’t see the prejudice there that would have

hindered the preparation for the defense.

We acknowledge that the district attorney general is required to “endorse on each

indictment or presentment . . . the names of the witnesses as the district attorney general

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intends shall be summoned in the cause.” Tenn. Code Ann. § 40-17-106. This provision is

“directory only, and a witness is not disqualified to testify because his name does not appear

on the indictment.” State v. Gilbert, 612 S.W.2d 188, 191 (Tenn. Crim. App. 1980) (citing

Aldridge v. State, 470 S.W.2d 42, 45 (Tenn. Crim. App. 1971); Houston v. State, 567 S.W.2d

485, 487 (Tenn. Crim. App.1978)). If a witness was not listed on the indictment or disclosed

prior to trial, the decision “[w]hether to allow the witnesses to testify is a matter of discretion

for the trial judge,” who should consider the “circumstances in the particular case” in

determining whether to permit the testimony. State v. Underwood, 669 S.W.2d 700, 703

(Tenn. Crim. App. 1984) (citing McBee v. State, 372 S.W.2d 173 (Tenn. 1963)). Likewise,

the admissibility of rebuttal evidence is a matter of discretion for the trial court. State v.

Thompson, 43 S.W.3d 516, 524 (Tenn. Crim. App. 2000).

In this case, the witness was offered as a rebuttal witness when defense counsel

vigorously cross-examined Officer Slayton as to his lack of proof for his assertion that the

Defendant had connected the water to the trailer using his name. Defense counsel’s cross-

examination established the relevancy and necessity for this witness. See State v. Kilpatrick,

52 S.W.3d 81, 87-88 (Tenn. Crim. App. 2001) (concluding, on a similar issue, that when a

defendant challenges the chain of custody in a case, the defendant should have known that

“a litany of witnesses, who otherwise know little about the case will testify for the State”);

see also State v. Alfred Eugene Bradley, No. E2002-02840-CCA-R3-CD, 2004 WL 223399,

*at 11 (Tenn. Crim. App. Feb. 5, 2004), perm. app. denied (Tenn. Sep. 7, 2004) (concluding

that the defendant failed to establish that he was prejudiced by the State’s decision to call a

rebuttal witness in their case-in-chief). Accordingly, we conclude that the trial court did not

err in permitting testimony from this witness.

V. Testimony from co-defendant

The Defendant contends that the trial court erred in prohibiting testimony concerning

the fact that the co-defendant pled guilty to the offense and that the Defendant’s right to

present a defense was hindered by the trial court’s ruling. The State responds that the

Defendant waived this issue when defense counsel failed to seek a formal ruling on the

record as instructed by the trial court. The State further responds that the trial court did not

err in “informally” ruling that evidence or testimony relative to the co-defendant’s guilty plea

was inadmissible unless the evidence was presented through the co-defendant or “through

some non-hearsay evidence.”

The record is devoid of any reference to a hearing regarding this matter. However,

on appeal to this court, the record was supplemented with affidavits filed by the trial court,

the Assistant District Attorney, and defense counsel regarding an untranscribed, pre-trial

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discussion in which the State’s motion to prohibit any mention of the co-defendant’s plea

agreement was discussed.

In its order and statement of evidence, the trial court stated that it advised defense

counsel that if this issue were to be brought up at trial, defense counsel would have to prove

that the evidence was relevant and did not violate the rules of hearsay before he would be

permitted to reference the co-defendant’s plea agreement. The trial court stated that this was

not a formal ruling and that it assumed a “request would be made for a hearing or a ruling

on the record.” In the State’s affidavit, the Assistant District Attorney General stated that

outside of the informal discussion in which the trial court advised defense counsel that he had

to properly introduce the evidence, defense counsel never requested a jury-out hearing or

attempted to elicit this information at trial. In defense counsel’s affidavit, defense counsel

stated that during the informal discussion, the trial court ruled that evidence of the co-

defendant’s plea agreement was irrelevant and inadmissible. Defense counsel further stated

that the trial court advised counsel that a formal announcement regarding this ruling would

be made on the record “during the trial or at some point during necessary ‘jury-out’

proceedings conducted in the trial.” Defense counsel stated that the trial court’s ruling was

never placed on the record.

According to the affidavits, defense counsel was advised that he would have to

establish that the evidence was relevant and admissible before evidence concerning the co-

defendant’s plea agreement would be admitted. This ruling was proper. Tenn. R. Evid. 402,

403; see also State v. Powers, 101 S.W.3d 383, 394-95 (Tenn. 2003) (stating that the rules

of evidence govern admissibility of evidence implicating someone other than the defendant).

Defense counsel never attempted to elicit the information at trial and never sought a

definitive ruling on the record as instructed by the trial court. Accordingly, we conclude that

this issue is waived. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as

requiring relief be granted to a party responsible for an error or who failed to take whatever

action was reasonably available to prevent or nullify the harmful effect of an error.”).

VI. Newly discovered evidence

The Defendant contends that the trial court erred in overruling his motion for new trial

based upon the newly discovered evidence of the co-defendant’s testimony that she was the

one who initiated the process of manufacturing methamphetamine in the trailer, not the

Defendant. The Defendant further contends that the trial court used the wrong standard in

considering the issue as evidenced by the trial court’s statement that because it did not

believe the co-defendant’s statement, it did not believe that the evidence was sufficient to

grant a new trial. The State responds that the evidence was not newly discovered because

the witness had refused to testify at trial, declaring that she would invoke her right against

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self-incrimination if she were subpoenaed. The State further responds that the evidence was

not material and would not have changed the outcome of the trial.

At the motion for new trial hearing, defense counsel introduced an affidavit from the

co-defendant in which she stated

[t]hat a search warrant was executed at this [Crossville residence] on or about

June 25, 2008. Various items, products, instruments and other personal

properties were found in and about the mobile home which law enforcement

officers contended were used in the manufacture of methamphetamine[]. All

of these items were mine and all activities conducted in and about the mobile

home associated with methamphetamine[] were initiated or engaged in by me

and me alone. The said [Defendant] did not participate in, consent to, assist

or participate in these activities[.]

The co-defendant further stated that she was contacted by defense counsel prior to trial and

that she advised defense counsel that if called as a witness, she would “assert [her] Fifth

Amendment privilege or otherwise refuse to provide any testimony favorable to [the

Defendant]” because she “had matters which were either pending or unresolved or which

[she] otherwise believed could adversely impact [her] in future proceedings or matters

pertaining to [her] future incarceration or anticipated release from jail.”

Defense counsel contended that he used “reasonable diligence to acquire th[e]

evidence”; that the affidavit was material; and that the affidavit was “likely to change the

result if accepted by the jury.” Defense counsel further contended that the co-defendant was

an unavailable witness because she intended to assert her right against self-incrimination if

called as a witness at trial. The State responded that the co-defendant’s affidavit was not

newly discovered because she was available to testify at trial. The State asserted that the co-

defendant pled guilty on February 14, 2009, two months prior to the Defendant’s trial that

was held on April 19, 2009. The State also introduced three statements from officers who

investigated the case. These statements reflected that the co-defendant denied any

involvement in the production of methamphetamine on at least two separate occasions.

Following the hearing, the trial court stated that “the fact that an affidavit has been

filed does not necessarily mean that the [c]ourt would have to accept it as true” and that it did

not “have much reason to believe [the co-defendant’s] affidavit” given her inconsistent

statements. The trial court further stated that it was “difficult to say that [her testimony]

would have changed the result of the trial” when she would have been cross-examined on her

prior convictions and drug-related charges. The trial court ultimately found that the alleged

newly discovered evidence was not “sufficient to grant a new trial.”

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“The decision to grant or deny a new trial on the basis of newly discovered evidence

is a matter which rests in the sound discretion of the trial court.” State v. Goswick, 656

S.W.2d 355, 358 (Tenn. 1983) (citing Jones v. State, 519 S.W.2d 398, 400 (Tenn. Crim. App.

1974)). “To obtain a new trial on the basis of newly discovered evidence, the defendant must

establish (1) reasonable diligence in seeking the newly discovered evidence; (2) materiality

of the evidence; and (3) that the evidence will likely change the result of the trial.” State v.

Nichols, 877 S.W.2d 722, 737 (Tenn. 1994) (citing Goswick, 656 S.W.2d at 358-60). “An

assessment of the witnesses’ credibility by the trial court is essential in order for the trial

court to determine whether the evidence is likely to change the result of the trial.” State v.

Bowers, 77 S.W.3d 776, 784 (Tenn. Crim. App. 2001); see also State v. Vasquez, 221

S.W.3d 514, 527 (Tenn. 2007) (stating that in coram nobis proceedings, the trial court must

be “reasonably well satisfied” with the veracity of the newly discovered evidence). When

considering questions of credibility, the trial court should deny the motion for new trial “‘if

the [c]ourt concludes that the evidence would not be worthy of belief by the jury.’” Bowers,

77 S.W.3d at 784 (quoting State v. Marlon D. Beauregard, No. W1999-01496-CCA-R3-CD,

2000 WL 705978, at *4 (Tenn. Crim. App. May 26, 2000), perm. app. denied (March 5,

2001)).

Here, defense counsel introduced an affidavit from the co-defendant, who did not

testify at the motion for new trial hearing. However, affidavits from officers involved in the

investigation were also introduced into evidence; these affidavits belied the co-defendant’s

current testimony contained in the affidavit. We agree with the trial court’s assessment

regarding the credibility of the co-defendant. Her inconsistent statements lead us to conclude

that the testimony contained in the affidavit likely would not have changed the outcome of

the trial. Following our review, we conclude that the trial court used the correct standard in

determining this issue and did not abuse its discretion in denying the motion for new trial

based upon the allegation of newly discovered evidence.

VII. Sentencing

The Defendant contends that the trial court’s decision to enhance his sentence was

contrary to the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004) and

that the ultimate sentence imposed was an excessive sentence that was inconsistent with the

purposes and principles of the sentencing act. The State responds that the record supports

the trial court’s sentencing decision given the Defendant’s criminal history and failure to

appear for the verdict in the instant case. The State further responds that the Defendant’s

reliance on Blakely is misplaced because the Defendant was properly sentenced in

accordance with the 2005 amendment to the Sentencing Act.

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At the sentencing hearing, the State introduced certified copies of the Defendant’s

prior convictions. The records reflect that the Defendant was convicted of attempted

aggravated assault, a Class D felony, on June 25, 1996; two counts of attempt to manufacture

methamphetamine, a Class D felony, on July 23, 2002; and vehicular assault, a Class D

felony, on March 15, 2005. Danny Williams of the Tennessee Board of Probation and Parole

testified that the Defendant also had several misdemeanor convictions for driving under the

influence, driving while his license was suspended, and speeding.

Investigator Cox testified that the Defendant, who was on bond at the time of trial,

was not present when the jury returned their verdict against the Defendant on March 19,

2009. Investigator Cox testified that the Defendant could not be found and was not

apprehended until April 1, 2009. As a result of the Defendant’s absence, the Defendant was

charged with felony failure to appear.

The Defendant’s brother, Dale Reed, testified that the Defendant had two children and

had been living with his ex-wife and children prior to his incarceration. Mr. Reed testified

that the Defendant cared for and provided for his children.

Following the sentencing hearing, the trial court considered the four certified

judgments of conviction reflecting that the Defendant had been convicted of four Class D

felonies and found that the Defendant was a Range II, multiple offender. In determining the

Defendant’s sentence as a multiple offender, the trial court applied enhancement factor (1),

The defendant has a previous history of criminal convictions or criminal

behavior, in addition to those necessary to establish the appropriate range.

Tenn. Code Ann. § 40-35-114(1). The trial court considered but rejected enhancement factor

(8),

The defendant, before trial or sentencing, failed to comply with the conditions

of a sentence involving release into the community.

Tenn. Code Ann. § 40-35-114(8). In accordance with the “catch-all” mitigating factor, the

trial court applied but gave little weight to the fact that the Defendant had a good working

history and cared for his family. Tenn. Code Ann. § 40-35-113(13). The trial court

considered but rejected all other mitigating factors. In sentencing the Defendant, the trial

court stated, “I do not believe that the proof would justify a 20-year sentence, but I think the

factors are sufficient to justify a 16-year sentence.”

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An appellate court’s review of sentencing is de novo on the record with a presumption

that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2005).

The appealing party has the burden of showing that the imposed sentence is improper. Id.

If review of the record reflects that the trial court properly considered all relevant factors,

gave due consideration to each factor, and its findings of fact are adequately supported by

the record, this court must affirm the sentence. State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991). Should the record fail to demonstrate the required considerations

by the trial court, then appellate review of the sentence is purely de novo. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate

review, the trial court must “place on the record, either orally or in writing, what

enhancement and mitigating factors were considered, if any, as well as the reasons for the

sentence.” Tenn. Code Ann. § 40-35-210(e).

The Defendant committed this offense on or about June 25, 2008; thus, he was

sentenced under the revised Sentencing Act as enacted by the Tennessee General Assembly

in 2005. The Act provides that:

(c) The court shall impose a sentence within the range of

punishment, determined by whether the defendant is a mitigated,

standard, persistent, career, or repeat violent offender. In

imposing a specific sentence within the range of punishment, the

court shall consider, but is not bound by, the following advisory

sentencing guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be

imposed, because the general assembly set the

minimum length of sentence for each felony class

to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should

be adjusted, as appropriate, by the presence or

absence of mitigating and enhancement factors set

out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2) (2006).

The weight to be afforded an enhancement or mitigating factor is left to the trial

court’s discretion so long as its use complies with the purposes and principles of the 1989

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Sentencing Act and the court’s findings are adequately supported by the record. Tenn. Code

Ann. § 40-35-210(d)-(f); State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). “An

appellate court is therefore bound by a trial court’s decision as to the length of the sentence

imposed so long as it is imposed in a manner consistent with the purposes and principles set

out in . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. Accordingly, on appeal we may

only review whether the enhancement and mitigating factors were supported by the record

and their application was not otherwise barred by statute. See id.

In conducting its de novo review with a presumption of correctness, the appellate

court must consider (1) the evidence, if any, received at the trial and sentencing hearing, (2)

the presentence report, (3) the principles of sentencing and arguments as to sentencing

alternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitigating or

statutory enhancement factors, (6) any statement that the defendant made on his own behalf,

(7) the potential for rehabilitation or treatment, and (8) any statistical information provided

by the Administrative Office of the Courts as to sentencing practices for similar offenses in

Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at

168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

Because the offense was committed after the 2005 amendment to the Sentencing Act,

the Defendant’s allegation that the trial court’s imposition of sentence violated Blakely is

without merit. Furthermore, the record reflects that the trial court followed the applicable

sentencing principles and appropriately found the existence of an applicable enhancement

factor. The record shows that the trial court gave proper consideration, but little or no

weight, to any proposed mitigating factors. Under the revised Sentencing Act, this court may

not re-weigh the enhancing and mitigating factors provided the trial court followed the

principles of sentencing. Given that the enhancement factor was supported by the record and

that the trial court considered the mitigating factors as required, we conclude that the record

supports the trial court’s sentencing decision. Accordingly, we affirm the Defendant’s 16-

year sentence for initiating the process of manufacturing methamphetamine.

CONCLUSION

In consideration of the foregoing and the record as a whole, the conviction and

sentence are affirmed. However, the judgment was signed by Judge Patterson, who did not

preside over the trial. It is apparent from the record that Judge Burns presided over the

entirety of the Defendant’s case. Therefore, the judgment should be corrected to reflect this

fact.

________________________________

D. KELLY THOMAS, JR., JUDGE

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