State of Tennessee v. Jeremy Sheron Hall a/k/a Rodney Lee Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 18, 2004

STATE OF TENNESSEE v. JEREMY SHERON HALL

a/k/a RODNEY LEE JONES

Appeal from the Criminal Court for Sullivan County

No. S46,078 Phyllis H. Miller, Judge

No. E2003-02946-CCA-R3-CD - Filed February 24, 2005

Convicted by a Sullivan County Criminal Court jury of possession of .5 grams or more of cocaine

with intent to sell, the defendant, Jeremy Sheron Hall, a/k/a Rodney Lee Jones, appeals and

challenges the trial court’s failure to suppress evidence, the admission of hearsay evidence, the

imposition of a $100,000 fine, and the length of the sentence imposed. We affirm the criminal

court’s judgment.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and

ALAN E. GLENN , JJ., joined.

Stephen M. Wallace, District Public Defender (at trial); Leslie Hale, Assistant Public Defender (at

trial); and Julie A. Rice, Knoxville, Tennessee (on appeal), for the Appellant, Jeremy Sheron Hall

a/k/a Rodney Lee Jones.

Paul G. Summers, Attorney General & Reporter; Renee Turner, Assistant Attorney General; H.

Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

The defendant in this case stands convicted of possession of .5 grams or more of

cocaine with the intent to sell or deliver. His conviction stems from his January 21, 2002 arrest in

the parking lot of the Kingsport Inn in Sullivan County. Using a confidential informant, Kingsport

Police Officer Rusty Wallace, Patrolman Kevin Hyatt, Sergeant Tim Crawford, and Detective Sean

Chambers organized a “buy-bust” drug operation aimed at apprehending a suspected drug trafficker

known as “Scientific.” The defendant’s arrest netted several rocks of crack cocaine packaged in a

plastic bag and concealed in the corner of the defendant’s mouth, 70 individually wrapped rocks of

cocaine secreted between the defendant’s buttocks, and a single rock of crack cocaine found in the

console of the gold Chevrolet Malibu that the defendant was driving. The rocks tested positive for

cocaine base, and their collective weight was 15.65 grams.

Pretrial, the defendant moved to suppress the drugs and a cellular telephone that also

was seized from him. He claimed that the evidence was obtained as the result of an illegal stop and

detention of his vehicle. The trial court conducted a suppression hearing and denied the motion. At

trial, the defendant did not testify or call any witnesses, but the theory of defense, as developed

through cross-examination of state witnesses, was that the state had failed to prove that the defendant

intended to sell or deliver the crack cocaine. The jury was instructed to consider the charged offense

and the lesser included offenses of (a) attempt to possess .5 grams or more of cocaine with intent to

sell or deliver, (b) possession of less than .5 grams of cocaine with intent to sell or deliver, (c)

attempt to possess less than .5 grams of cocaine with intent to sell or deliver, (d) simple possession,

and (e) attempt to casually exchange a controlled substance. The jury rejected the defense theory and

found the defendant guilty of possession of the greater amount of cocaine with intent to sell.

On appeal, the defendant does not assail the sufficiency of the convicting ev12

dence. Instead, he challenges the correctness of the trial court’s suppression rulings, the admission

at trial of prejudicial hearsay testimony, and the $100,000 fine and 15-year sentence that were

imposed. We consider each of these issues in turn.

I. Suppression of Narcotics

As developed at the suppression hearing and at trial, see State v. Henning, 975

S.W.2d 290, 299 (Tenn. 1998) (reviewing court is not limited to what transpired at the suppression

hearing; rather, it may consider the entire record, including trial transcripts), the defendant first came

to the attention of the Kingsport Police Department on November 17, 2001, when he was stopped

on Wilcox Drive at approximately 3:20 a.m. by Sergeant Crawford for driving 55 miles per hour in

a 45 miles-per-hour speed zone. The defendant produced a North Carolina driver’s license in the

name of Rodney Jones. A driver’s license check uncovered nothing suspicious, but the vehicle, a

gold Chevrolet Malibu, was registered to a female, Tawana Jenkins. When the defendant explained

that Ms. Jenkins was his girlfriend, the officer issued the defendant a traffic citation and released the

defendant.

Some time later, Sergeant Crawford received general information about drug

trafficking in the Johnson City area involving people from North Carolina. One such individual had

the nickname “Scientific.”

On January 21, 2002, a white male approached Officer Hyatt in the parking lot of the

Kingsport Justice Center. The man said that he could make a drug buy from a person named

“Scientific.” The man explained that he was offering to help because he wanted law enforcement

assistance in securing his wife’s pretrial release from jail. Officer Hyatt testified that he referred the

man to the district attorney’s office regarding bond, but he also told the man he was willing to listen

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to his information. A hastily convened meeting, held in the library of the Justice Center and attended

by the informant and Officers Wallace, Hyatt, Crawford, and Chambers, ensued.

Officer Wallace testified that as a prelude to the library meeting, he had been

receiving information for some time from multiple sources, including both law enforcement officers

and confidential informants, that a pair of men from North Carolina had been trafficking in narcotics

in Johnson City. The men had street names, “Black” and “Scientific,” and were reputed to be part

of a larger violent and armed group. A patrol officer, Jim Clark, who had been hearing similar

information, believed that he had previously encountered either “Black” or “Scientific” and had

made a digital photograph of the individual’s driver’s license, which bore the individual’s

photograph. Officer Clark showed his photograph to Officer Wallace who then showed it to one of

his confidential informants; that informant, who had heard of “Scientific” and “Black,” identified

the person in the photograph as “Scientific.”

At the library meeting, Officer Wallace pressed the new informant for details. The

informant related that he had seen “Scientific” sell drugs in the area of the Kingsport Inn, where the

informant was staying. The informant also said that the dealer drove a newer model gold Chevrolet.

Officer Wallace produced a photographic array and asked the informant if he recognized anyone as

being “Scientific.” Officer Wallace had included in the array the photograph obtained earlier from

Officer Clark, and it was that photograph that the informant identified as “Scientific.” The informant

also ultimately admitted that he had personally purchased drugs from “Scientific” and that the dealer

“would deliver the drugs to his room but he had to go outside and meet him at the car.”

Based on the informant’s information and his offer to participate in a controlled buy,

the officers organized a “buy-bust.” The plan involved going to the informant’s hotel room at the

Kingsport Inn and making a telephone call to set up the drug transaction. Sergeant Crawford and

Hyatt accompanied the informant inside the hotel room. Because the telephone in the room was not

working, Officer Wallace took the informant to a pay telephone across the street; Officer Wallace

dialed the number and handed the receiver to the informant. The officer heard the informant say that

“this is JT, I need an 8. Yeah, uh, uh, room 155 Kingsport Inn.” When the call terminated, the

informant related that “Scientific” would arrive in 10 minutes.1 The informant returned to the motel

room and stayed with Sergeant Crawford and Hyatt, while Officer Wallace and Detective Chambers

remained outside in their vehicle.

Approximately 10 minutes had elapsed when Officer Wallace and Detective

Chambers observed a newer model gold Chevrolet pull into the parking lot. Detective Chambers

testified that as the Chevrolet passed the officers’ position, he saw and could identify the driver of

the vehicle as the individual known as “Scientific” whose photograph Detective Chambers had seen

at the Justice Center. Detective Chambers radioed the hotel room and advised that the vehicle was

headed toward the room.

1

As discussed later in this opinion, the trial court did not admit at trial remarks made by the informant after

the call terminated. These statements were, however, introduced at the suppression hearing.

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The officers inside the room “peeked” out the window and saw the vehicle backing

into a parking space in front of the room. They opened the motel door and proceeded to either side

of the vehicle, with their guns drawn but not raised. According to Sergeant Crawford, standard

procedure required officers to unholster their firearms when dealing with individuals believed to be

selling drugs and armed. As for why the officers did not remain in the hotel room, Sergeant

Crawford explained that because of safety concerns, they did not send the informant out to the

vehicle to obtain the drugs, and based on the informant’s information, the officers knew that the

defendant would not come to the motel door.

When Sergeant Crawford reached the driver’s side window, he told the driver to put

the car in “park” and open the door. The defendant shifted the car into “park” but refused to unlock

the door. Instead, he “immediately took his right [hand] and went in between his legs.” Sergeant

Crawford testified that he thought the defendant “was either going for a weapon or hiding evidence

or something so I told him again, repeatedly, open the door, open the door.” Again, the defendant

refused to comply, and at that point, the officers raised their guns and pointed them at the defendant.

Officer Hyatt, who had approached the passenger side, recalled seeing the defendant’s furtive

movement, and therefore pointed his gun at the defendant, screaming for the defendant to raise his

hands, and hitting the car window with his arm.

Eventually, the defendant unlocked the car door. Sergeant Crawford described what

happened next:

Well, believing that he may have been hiding a weapon or

putting some type of contraband or evidence underneath – stuffing it

in the seat or under the seat, especially a weapon, I took him out of

the car, grabbed a hold of him, and put him on the ground. And then

we patted him down[,] and he was handcuffed.

No weapons were discovered. By that time, Detective Chambers and Officer Wallace had arrived

at the car. One of the officers asked the defendant’s name. The defendant answered, “Lee,” but his

response was garbled. Detective Chambers asked the defendant if he had anything in his mouth, and

when the defendant opened his mouth, the officer spied a plastic bag between the defendant’s cheek

and gum. Detective Chambers then took a key and “raked a plastic baggie out of [the defendant’s]

mouth.” The baggie had rocks in it that appeared to be crack cocaine. Based on that find, Officer

Hyatt began to search the vehicle whereupon he found and seized another plastic baggie with a tan

colored rock in it and a cellular telephone. The third and largest stash of crack cocaine was found

on the defendant’s person at the jail when he was strip searched.

At the police station, Officer Wallace examined the cellular telephone’s log of calls

received. One of the calls received corresponded to the number of the payphone where the informant

set up the drug buy, and the time listed for that call corresponded to the time the informant placed

the call. Officer Wallace did not ascertain the number assigned to the cellular telephone itself.

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The defendant challenged the seizure of the narcotics and his cellular telephone on

several grounds. He argued that the officers witnessed no traffic infraction justifying the defendant’s

detention on reasonable suspicion or probable cause grounds. He also claimed that the information

relayed by the confidential informant did not supply probable cause to arrest the defendant or

reasonable suspicion to detain him in the motel parking lot. Although implicitly agreeing that the

defendant was violating no traffic laws, the trial court concluded that the officers had probable cause

to arrest and search the defendant based upon the reliability of the informant’s tip and the

informant’s basis of knowledge. Alternatively, the trial court ruled that even if probable cause was

lacking, the officers had reasonable suspicion to investigate the defendant’s presence in the parking

lot and that the defendant’s furtive gestures, as if reaching for a weapon, justified searching him for

a gun.

Aggrieved by the denial of his suppression motion, the defendant urges this court to

reverse and order the suppression of all evidence, as he writes on appeal, “flowing from the illegal

stop of his car in the parking lot of the Kingsport Inn.”

We review the trial court’s findings and rulings pursuant to a familiar standard. “[A]

trial court’s findings of fact in a suppression hearing will be upheld unless the evidence

preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Credibility questions,

evaluations of the weight of the evidence, and evidentiary disagreements fall within the trial court’s

province as the trier of fact. See State v. England, 19 S.W.3d 762, 766 (Tenn. 2000); Odom, 928

S.W.2d at 23. The party prevailing in the trial court “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.” Odom, 928 S.W.2d at 23; see State v. Binette, 33 S.W.3d

215, 217 (Tenn. 2000). The trial court’s conclusions of law, however, are reviewed de novo without

a presumption of correctness. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

The Fourth Amendment of the United States Constitution protects the right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures and commands that “no warrants shall issue but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV. The Tennessee Constitution similarly provides, in relevant part,

that “the people shall be secure in their persons, houses, papers and possessions, from unreasonable

searches and seizures.” Tenn. Const. art. 1, § 7. 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). Stated another

way, these constitutional safeguards do not attach to law enforcement activities unless the activities

qualify as a “search” or “seizure” within the meaning of the Fourth Amendment and/or Article 1,

Section 7 of the Tennessee Constitution. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001).

As we view the matter, it is possible to clear two swaths through the present

constitutional thicket. Traveling along the first path, we encounter the informant’s tip alone and

consider whether the reliability of that tip and the informant’s basis of knowledge supplied probable

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cause justifying the defendant’s seizure and arrest. Making our way along the second path, we

examine the mere reasonableness of the officers’ suspicion in approaching the defendant in a public

place and reacting to furtive gestures inside the automobile.

According to both the Fourth Amendment and Article I, section 7 of the Tennessee

Constitution, “a warrantless search or seizure is presumed unreasonable, and evidence discovered

as a result thereof is subject to suppression unless the State demonstrates that the search or seizure

was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.”

Yeargan, 958 S.W.2d at 629 (citation omitted). One such exception to the warrant requirement

arises when an arresting officer has “probable cause” to effectuate a warrantless arrest. See State v.

Bridges, 963 S.W.2d 487, 491 (Tenn. 1997) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225

(1964)); State v. Jacumin, 778 S.W.2d 430, 431 (Tenn. 1989). Probable cause in the context of a

warrantless arrest “exists if, at the time of the arrest, the facts and circumstances within the

knowledge of the officers, and of which they had reasonably trustworthy information, are ‘sufficient

to warrant a prudent man in believing that the [defendant] had committed or was committing an

offense.’” Bridges, 963 S.W.2d at 491 (quoting Beck, 379 U.S. at 91, 85 S. Ct. at 225); see State v.

Lewis, 36 S.W.3d 88, 97 (Tenn. Crim. App. 2000) (“Probable cause is ‘a reasonable grounds for

suspicion, supported by circumstances indicative of an illegal act.’”).

If the arresting officers rely on information from a criminal confidential informant,

they must be able to demonstrate that the informant (1) has a basis of knowledge and (2) is credible

or the information is reliable. See Jacumin, 778 S.W.2d at 436 (adopting two-prong test of Aguilar

v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct.

584 (1969)); Lewis, 36 S.W.3d at 98. On the other hand, “[i]nformation provided by a [known]

citizen/bystander witness . . . is presumed to be reliable, and the prosecution is not required to

establish either the credibility of the informant or the reliability of his information.” State v. Cauley,

863 S.W.2d 411, 417 (Tenn. 1993); see State v. Melson, 638 S.W.2d 342, 354-56 (Tenn. 1982);

Lewis, 36 S.W.3d at 98.

The defendant in this case complains that the state did not show the informant’s basis

of knowledge or his credibility. In light of the trial court’s findings and our independent review of

the application of those findings to the applicable law, we disagree.

As for the informant’s basis of knowledge, he related to the investigating officers

personal observations and dealings – first-hand information. The informant identified the dealer

known to him as “Scientific” from a photo spread and had a telephone number to contact the dealer.

The informant’s identification of the man in the photograph as “Scientific” was corroborated by

another informant’s similar identification. The new informant knew that the drug dealer drove a

newer model gold Chevrolet, and the informant had witnessed drug sales by the dealer in the

Kingsport Inn area. Indeed, the informant admitted that he had personally purchased drugs from the

dealer who would drive up to the informant’s motel room but would wait outside in the car. This

evidence clearly demonstrates the informant’s basis of knowledge. See State v. Valentine, 911

S.W.2d 328, 330 (Tenn. 1995) (that informant knew what marijuana looked like and bought

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marijuana from defendant at cited location and had seen cocaine at cited location was sufficient to

satisfy “basis of knowledge” prong for determining whether probable cause supported issuance of

warrant); State v. Brown, 898 S.W.2d 749, 752 (Tenn. Crim. App. 1994) (informant’s basis of

knowledge firmly established in that he claimed to have purchased drugs that same day from

defendant and apparently arranged a second drug transaction).

The defendant complains that because the informant gave no time-frame reference

for the drug deals the “basis of knowledge” prong was not satisfied. Clearly, however, the type of

information related by the informant described a current, continuing course of illegal conduct.

“Staleness must be determined on a case-by-case basis.” State v. Norris, 47 S.W.3d 457, 470 (Tenn.

Crim. App. 2000). “When the illegal activity described is ongoing, courts have generally held that

the [information] does not become stale with the passage of time.” State v. Thomas, 818 S.W.2d

350, 357 (Tenn. Crim. App. 1991). The informant did not speak to the officers about some isolated

event; he spoke in terms of protracted and continuous drug dealings, particularly in the area of the

Kingsport Inn.

As for the informant’s credibility, it is true that the general credibility of an informant

is ordinarily demonstrated by previously provided information that has proven to be reliable. State

v. Moon, 841 S.W.2d 336, 339 (Tenn. Crim. App. 1992) (“Obviously, an informant’s ‘track record’

of providing verified information would be relevant in inferring that the informant is a credible

person.”). There is no evidence of such a “track record” in this case. Nonetheless, the reliability of

the information can satisfy the veracity prong of the Aguilar-Spinelli test.

Because of previously acquired information, the officers were able to accurately

gauge the reliability of the information conveyed to them. Sergeant Crawford had performed a

traffic stop in November 2001 of a gold Chevrolet driven by a man who produced a North Carolina

driver’s license. Later, Sergeant Crawford began hearing about drug trafficking in the Johnson City

area involving people from North Carolina and about one such trafficker with the nickname

“Scientific.” Another officer who had been receiving similar information passed along to Sergeant

Crawford a photograph of an individual believed to be either “Black” or “Scientific.” One of

Sergeant Crawford’s known confidential informants then identified the person in the photograph as

“Scientific.” The person who approached Officer Hyatt in the parking lot of the Justice Center on

January 21, 2002, confirmed what the officers had already been hearing, and the person even

identified the same photograph as did Sergeant Crawford’s confidential informant. His information,

thus, satisfied the veracity prong.

Finally, we note that “independent police corroboration” can compensate for any

perceived deficiencies in either prong. Jacumin, 778 S.W.2d at 436. Virtually all of the informant’s

information had been corroborated beforehand by other law enforcement and non-law-enforcement

sources. Additional corroboration appeared when a person matching the photograph of “Scientific”

arrived in the previously described vehicle shortly after the informant’s call and when the driver

backed the car into a parking space in front of the informant’s room – again, just as previously

described by the informant.

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Probable cause, in our opinion, existed for the officers to arrest the defendant, which

ultimately led to the discovery of the contraband. The drugs were not improperly admitted at trial.

In the event further review should occur in this case, we now turn to the second

rationale for admitting the evidence – the trial court’s alternative holding that even if probable cause

was lacking, the officers had “reasonable suspicion” to investigate the defendant’s presence in the

parking lot and that the defendant’s furtive gestures, as if reaching for a weapon, justified what

followed. In determining whether reasonable suspicion exists, an important consideration is that

reasonable suspicion is a less demanding standard than probable cause because reasonable suspicion

can be established with information that is different in quantity or content than required to establish

probable cause and because reasonable suspicion can arise from less reliable information than

required to show probable cause. See State v. Pulley, 863 S.W.2d 29, 32 (Tenn. 1993) (citing

Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)).

We first note that calling the initial encounter a traffic stop misses the mark.

According to the testimony, when Officer Hyatt and Sergeant Crawford came out of the motel room,

the defendant was backing into a parking space directly in front of the room. When the officers drew

up next to the vehicle, the engine was running, but evidently the vehicle had already stopped moving.

It is important to remember “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.” State v. Daniel, 12 S.W.3d

420, 425 (Tenn. 2000). In addition, an officer may constitutionally approach an individual in a

parked car in a public place, ask questions, and even seek permission for a search as along as the

officer “do[es] not convey a message that compliance with [the officer’s] request[] is required.” Id.

at 426; see Pulley, 863 S.W.2d at 30 (police may approach car parked in a public place and ask for

driver identification and proof of vehicle registration, without any reasonable suspicion of illegal

activity); State v. Wilhoit, 962 S.W.2d 482, 486 (Tenn. Crim. App. 1997). On the other hand, when

an officer stops a moving vehicle or initiates a stop by a show of authority, a seizure invoking the

protections of both the state and federal constitutions has occurred. State v. Randolph, 74 S.W.3d

330, 338 (Tenn. 2002) (defendant was “seized” when officer made a show of authority by activating

the blue lights on his patrol car and instructing defendant to stop).

In this case, we discern nothing objectionable about the officers approaching the

stopped vehicle. Granted, the officers testified that they had unholstered their firearms as they left

the motel room and were carrying them at their sides; nevertheless, there is no evidence that the

officers displayed their firearms to the defendant when they first approached the car.

The officers next initiated an investigatory detention of the defendant by instructing

him to place the vehicle in park and open his door. The defendant complied with the order to place

the vehicle in park; he balked, however, at the order to open his car door and made a furtive

movement with his right hand. At that point, the officers displayed their weapons and pointed them

at the defendant.

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Considering whether the officers’ actions were reasonable in connection with the

investigatory detention, we note that the officers had information that the target was armed and

dangerous. When a suspected offense typically involves the use of a weapon, frisks have been

regarded as reasonable. Offenses falling into this category include robbery, rape, homicide, and large

scale narcotics trafficking. See State v. Mark Howard Russell, No. E2002-02098-CCA-R3-CD, slip

op. at 4 (Tenn. Crim. App., Knoxville, Aug. 11, 2003); State v. Winn, 974 S.W.2d 700, 703 (Tenn.

Crim. App. 1998). Moreover, the officers testified that they were alarmed by the defendant’s furtive

gestures indicating that he may have been reaching for a weapon. Such circumstances can support

the reasonableness of a protective frisk. See Winn, 974 S.W.2d at 704 (listing various relevant

circumstances, including an “otherwise inexplicable sudden movement toward a pocket or other

place where a weapon could be concealed; an otherwise inexplicable failure to remove a hand from

a pocket; backing away by the suspect under circumstances suggesting he was moving back to give

himself time and space to draw a weapon”).

Of course, in the context of this case the officers could not perform a weapons frisk

while the defendant remained in the automobile. In our opinion, removing the defendant from the

automobile, placing him on the ground, and conducting a protective frisk was reasonable,

considering the prior information about being armed, the nature of the suspected crime, and the

defendant’s inexplicable sudden movement toward the car seat where a weapon could have been

concealed. Officers need not jeopardize their own safety for the sake of expediting a legitimate

investigation. See Knowles v. Iowa, 525 U.S. 113, 117, 119 S. Ct. 484, 488 (1998) (for the purpose

of officer safety, both the driver and passenger may be ordered out of a vehicle in the course of a

routine traffic stop); Terry v. Ohio, 392 U.S. 1, 23-26, 88 S. Ct. 1868, 1881-83 (1968) (limited

pat-down search permissible upon a showing that such action is justified to protect the officer).

We must now examine the reasonableness of the officers’ actions following the frisk.

Sergeant Crawford testified, “I took him out of the car, grabbed a hold of him, and put him on the

ground. And then we patted him down[,] and he was handcuffed.” There is no evidence, however,

in the record that the defendant was armed or that the officers discovered anything as a result of the

protective frisk. In the typical situation, the protective frisk uncovers something justifying further

investigation or an attendant arrest. Sergeant Crawford did not explain why he handcuffed the

defendant after the frisk disclosed no weapons. Without more, we do not believe that the officers

were justified in handcuffing the defendant, thereby effecting a full-blown arrest. See State v.

Antonio T. Seay, No. M2002-02129-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Nashville, July

11, 2003) (“We agree that handcuffing the defendant was not justified by a reasonable suspicion to

stop and question the defendant.”).

That said, the discovery of the first cocaine rocks occurred when the defendant gave

a garbled response after being asked his name. The garbled response prompted Detective Chambers

to inquire if the defendant had anything in his mouth, at which point the defendant opened his mouth.

Detective Chambers spied the plastic bag and “raked” it out of the defendant’s mouth. That seizure

set in motion the discovery of the other cocaine. We find it impossible to fathom that the officers

in this case would not have asked the defendant his name in connection with an investigative

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detention. That is, regardless whether the defendant was handcuffed or standing outside the vehicle

after having been frisked, the officers undoubtedly would have undertaken to ascertain the

defendant’s identity, at which point the cocaine in his mouth “inevitably” would have been

discovered. See State v. Cothran, 115 S.W.3d 513, 525 (Tenn. Crim. App. 2003), perm. app. denied

(Tenn. 2003) (under inevitable discovery doctrine, illegally obtained evidence is admissible if the

evidence would have otherwise been discovered by lawful means) (citing Nix v. Williams, 467 U.S.

431, 444, 104 S. Ct. 2501, 2509 (1984)).

Consequently, for the foregoing reasons, we affirm the trial court’s ruling that the

evidence was not subject to suppression.

II. Cellular Telephone

As a separate issue, the defendant objects to the trial court’s admission of a cellular

telephone based on what he claims was a failure in the chain of custody. This issue need not detain

us long inasmuch as the defendant has waived consideration of this claim. We note that the record

discloses some confusion as to which officer initially found the cellular telephone, but the defendant

failed to object to admission of the item until after it had been introduced. Indeed, the defendant did

not register an objection until after the state had rested its case. Under the circumstances, the failure

to voice a contemporaneous objection waives the issue. See, e.g., State v. Burton, 751 S.W.2d 440,

448 (Tenn. Crim. App. 1988) (failure to make contemporaneous objection to evidence resulted in

waiver of issue); State v. Davis, 741 S.W.2d 120, 124 (Tenn. Crim. App. 1987) (failure to object to

evidence “until after it was all placed before the jury” resulted in waiver of issue); see also 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.”)

III. Hearsay Statements

In his next issue, the defendant complains that the trial court erroneously admitted

hearsay statements made by the informant even though it had previously ruled such statements

inadmissible.

The informant did not testify in the case, and during Officer Wallace’s testimony, the

state sought to elicit that the informant had told the officers that he could buy drugs from a person

known as “Scientific.” The defense registered a hearsay objection, and following a jury-out hearing,

the court ruled that the state could not admit the informant’s remarks to the officers. Thereafter, the

state sought to elicit what Officer Wallace heard the informant say during the telephone call to set

up the drug buy and to elicit that after the call, the informant told Officer Wallace that the subject

would be at the motel in ten minutes and would be driving a gold car. After another jury-out hearing,

the court ruled, “[Y]ou can’t say he said he’d be here in ten minutes and he’ll be driving a gold car.”

The court also told the state that Officer Wallace could not discuss the name “Scientific.”

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The defendant insists that the trial court ruled that no mention could be made of the

contents of the informant’s portion of the telephone conversation from the pay phone; the state,

according to the defendant, then deliberately led Officer Wallace back into hearsay territory

regarding the informant’s end of the conversation. The record shows that Officer Wallace testified,

“[O]nce the number was dialed he had, I heard him say ‘This is J-T, I need an eight. Yeah, uh-huh,

room 115 Kingsport Inn.’” Officer Wallace did not mention the name “Scientific” or attribute to the

informant the statements that the dealer would arrive in 10 minutes and be driving a gold car.

Our review of the record persuades us that the trial court never excluded as

inadmissible hearsay the informant’s portion of the pay telephone conversation. The defendant is

simply wrong on that account. Moreover, we note that the defense registered no contemporaneous

objection, hearsay or otherwise, to the allegedly offending testimony. The issue, consequently, has

been waived. See Tenn R. Evid. 103(a)(1); Tenn. R. Crim. P. 36(a); see also State v. Sutton, 562

S.W.2d 820, 825 (Tenn. 1978). Further, hearsay testimony is probative unless proper objection is

made to it. State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981).

Even had a proper hearsay objection been registered, in our view the informant’s end

of the telephone conversation is not hearsay. Hearsay is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted. Tenn. R. Evid. 801(c). We conclude that the informant’s end of the conversation, as

repeated by Officer Wallace, was not offered to prove the truth of the matters asserted. Faced with

a similar situation in State v. Jaman T. Booker, No. 03C01-9607-CC-00273 (Tenn. Crim. App.,

Knoxville, June 24, 1997), the court ruled that the confidential informant’s statements “were clearly

made for the purpose of providing the defendant, a willing drug dealer, with a customer and merely

depicted one side of a drug transaction.” Id., slip op. at 4. The same holds true in this case, and the

defendant is entitled to no relief on his hearsay claim.

IV. Sentencing

A. $100,000 Fine

Turning next to his sentencing hearing, the defendant objects to the trial court’s

approval of the jury-levied fine in the amount of $100,000. He complains that he has no current

ability to pay such a fine and that his prospects for future employment upon release are poor. He also

argues that his offense was not so egregious as to warrant such a large fine.

Appellate review clearly extends to the imposition of fines. State v. Bryant, 805

S.W.2d 762, 767 (Tenn. 1991). When an offense is punishable by a fine in excess of $50, it is the

jury’s responsibility to set a fine, if any, within the ranges provided by the legislature. See Tenn.

Code Ann. § 40-35-301(b) (2003). The trial court, in imposing the sentence, shall then impose a fine

in an amount not to exceed the fine fixed by the jury. See id.

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The trial court’s imposition of a fine is to be based upon the factors provided by the

1989 Sentencing Act, which includes the defendant’s ability to pay the fine. See State v. Marshall,

870 S.W.2d 532, 542 (Tenn. Crim. App. 1993). A defendant’s ability to pay, however, is not the

controlling factor. State v. Butler, 108 S.W.3d 845, 853 (Tenn. 2003). A fine, in other words, “is

not automatically precluded because it works a substantial hardship on the defendant; it may be

punitive in the same fashion incarceration may be punitive.” State v. Jimmy Wayne Perkey, No.

E2002-00772-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App., Knoxville, Aug. 12, 2003), perm. app.

denied (Tenn. 2003). Other relevant factors include prior history, potential for rehabilitation, and

mitigating and enhancing factors that are relevant to an appropriate overall sentence. See State v.

Blevins, 968 S.W.2d 888, 895 (Tenn. Crim. App. 1997). The seriousness of a conviction offense

may also support a punitive fine. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App.

1996).

We find no objection by the defendant at the time of sentencing to the fine that the

jury imposed and no proof or argument why the court should not approve the fine. The amount of

the fine was included as a ground in the new trial motion, but defense counsel did not argue the

issue. The trial court briefly mentioned the fine in denying the motion for new trial; it noted the

large amount of cocaine involved and the defendant’s youth and apparent good health. On appeal,

the defendant merely argues that his future prospects for employment are not good and that the value

of the cocaine – as opposed to the amount – is not so egregious as to support the fine.

In our estimation, the defendant has not shouldered his burden on appeal to show why

the fine is excessive. See Butler, 108 S.W.3d at 852. The defendant’s criminal history and the

seriousness of the offense adequately support the punitive nature of the fine assessed. In addition,

the trial court found the defendant’s credibility to be nonexistent, as illustrated by the defendant’s

testimony at sentencing that he possessed the 15.65 grams of crack cocaine for personal use. The

court specifically found that the defendant was “untruthful, doesn’t take responsibility for his

actions” and that “[i]t’s a totally unbelievable, incredible story he’s testified to today, under oath.”

Given the circumstances, we find no error or abuse of discretion in the imposition of the fine in this

case.

B. 15-Year Range II Sentence

For his last issue, the defendant complains that the length of his sentence is excessive.

He does not challenge the trial court’s application of enhancement factors for prior criminal history

and prior unwillingness to comply with release conditions. See Tenn. Code Ann. § 40-35-114(2),

(9) (2003). Additionally, he does not advocate a particular sentence but argues in general terms that

his sentence should have been “mitigated downward” because his conduct did not threaten or cause

serious bodily injury.

When, as in this case, a defendant complains that he was improperly sentenced, it is

the duty of this court to conduct a de novo review of the record with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This

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presumption is “conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). “The burden of

showing that the sentence is improper is upon the appellant.” Ashby, 823 S.W.2d at 169. In the

event the record fails to demonstrate the required consideration by the trial court, review of the

sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly

considered all relevant factors and its findings of fact are adequately supported by the record, this

court must affirm the sentence, “even if we would have preferred a different result.” State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The mechanics of arriving at an appropriate sentence are spelled out in the Criminal

Sentencing Reform Act of 1989. At the conclusion of the sentencing hearing, the trial court

determines the range of sentence and then determines the specific sentence and the propriety of

sentencing alternatives by considering (1) the evidence, if any, received at the trial and the 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 involved, (5) evidence and

information offered by the parties on the enhancement and mitigating factors, (6) any statements the

defendant wishes to make in the defendant’s behalf about sentencing, and (7) the potential for

rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b) (2003); 40-35-103(5) (2003);

State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

In the present case, the trial judge made appropriate reference to the principles of

sentencing and expressed specific findings of fact. We, therefore, accord to her judgment the

presumption of correctness.

As a Range II multiple offender convicted of a Class B felony, the defendant faced

a sentencing range of 12 to 20 years. See Tenn. Code Ann. § 40-35-112(b)(2) (2003). The

defendant’s 15-year sentence exceeds the presumptive minimum sentence by three years. The

defendant complains that the trial court improperly overlooked, as a mitigating factor, that his

conduct “neither caused nor threatened serious bodily injury,” see id. § 40-35-113(1) (2003), and he

relies upon State v. Ross, 49 S.W.3d 833 (Tenn. 2001), as rejecting a per se exclusion of this

mitigating factor in drug cases. As we shall explain, we find no reason to disturb the trial court’s

sentencing determination.

First, we do not interpret the trial court’s remarks during sentencing as adopting a per

se exclusion of the disputed mitigating factor. The trial court explained,

Mitigating factors, number one is criminal conduct neither

caused nor threatened serious bodily injury. Jury found him guilty of

possession with intent to distribute. He had a large, extremely large

amount of cocaine on him, crack cocaine. I don’t think that that

mitigating factor would apply. But if it does, because it’s a Schedule

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II drug and the amount, I give it very, very little weight; a negligible

amount of weight.

The trial court’s ruling also does not run afoul of Ross. Indeed, in Ross the supreme

court stated,

Although cocaine itself may well be, in the words of the trial court,

an “inherently addictive and dangerous substance,” this fact alone

says nothing about the appellant’s criminal conduct, which was

constructive possession of the substance located in a room several

doors down from where the officers initially found the appellant.

Moreover, we see no evidence in the record that the appellant actually

sold or attempted to sell the drug at the time of the offense. Had

either of these circumstances been present, then the dangerous nature

of the drug, combined with the dangerous nature of many drug

transactions, may have indeed supported the trial court’s rejection of

this factor as constituting a threat of serious bodily injury.

. . . [W]e conclude that when, as here, (1) the conviction for

possession is based only upon constructive possession, and (2) the

threat of serious bodily injury is more conceptual than real, little

justification exists in having a per se rule that excludes consideration

of this mitigating factor. . . .

However, in rejecting a per se exclusion of this mitigating

factor in cocaine possession cases, we do not require that this factor

be accorded any especial significance in a given case.

Id. at 848.

By contrast, the defendant in this case was convicted of actual, not constructive,

possession of a large amount of cocaine with intent to sell or deliver. Moreover, when arrested, the

defendant was in the midst of an attempted sale of cocaine. Under the circumstances, we find no

error in the trial court’s rejection of this mitigating factor as constituting a threat of serious bodily

injury and no error in its alternative ruling assigning marginal weight to the factor, should it apply.

See State v. Michael Andrae Holman, No. M2002-01471-CCA-R3-CD, slip op. at 7 (Tenn. Crim.

App., Nashville, July 23, 2003) (even if the mitigating factor that conduct neither caused nor

threatened serious bodily injury applied, it was entitled to very little weight due to substantial amount

of cocaine involved and proof that defendant intended to sell the cocaine).

Now, having performed our statutory de novo analysis of the length of the sentence,

we must take into account the impact of the federal constitutional guarantee of the right to jury trial.

See U.S. Const. amend VI.

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In Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), the United States

Supreme Court held that the defendant’s constitutional rights to a jury trial were violated when the

trial judge, based upon facts he found without the aid of a jury, imposed a sentence in excess of the

“maximum” he could have otherwise imposed under state law “without the challenged factual

finding.” Id. at ___, 124 S. Ct. at 2536-38. The “maximum” sentence for purposes of Blakely “is

the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury

verdict or admitted by the defendant.” Id. at ___, 124 S. Ct. at 2537 (emphasis in original). The

statutory maximum the court may impose is the maximum “he may impose without any additional

findings.” Id., 124 S. Ct. at 2537 (emphasis in original). “When a judge inflicts punishment that the

jury’s verdict [or guilty plea] alone does not allow, [a] jury has not found all the facts ‘which the law

makes essential to the punishment,’ and the judge exceeds his proper authority.” Id., 124 S. Ct. at

2537 (citation omitted). The single exception to this rule is that state law may authorize a trial judge

to increase a sentence beyond the minimum based upon “the fact of a prior conviction.” Id. at ___,

124 S. Ct. at 2536; see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 (2000).

Pursuant to Blakely and Apprendi, sentence enhancement, such as the trial court

performed in this case, based upon section 40-35-114’s factor (9) of prior unwillingness to comply

with release conditions requires a jury finding. Accordingly, this factor should be disregarded.

The other sentencing enhancement factor in this case for prior criminal history, Tenn.

Code Ann. § 40-35-114(2) (2003), survives pursuant to Blakely and Apprendi, as an exception to the

requirement of a jury finding. The record in this case shows that the defendant was convicted, inter

alia, in 1996 of two counts of felony robbery with a dangerous weapon. Evidently, these convictions

were used to classify the defendant as a Range II multiple offender. See Tenn. Code Ann. § 40-35-

106(a)(1), (b)(4) (2003). When the state filed its notice of intent to seek enhanced punishment, it

listed the two robbery convictions and a 1993 conviction for misdemeanor possession of marijuana

in West Virginia. Our review of the presentence report discloses that the defendant also has two

convictions for criminal impersonation and a conviction for driving with a revoked license in 2002.

Considering the defendant’s conviction offense in this case, these prior convictions – particularly

the prior drug conviction – are entitled to substantial weight, justifying the imposition of a 15-year

sentence.

We, therefore, decline to disturb the ultimate sentencing decisions made by the trial

court.

V. Conclusion

In accordance with the foregoing, we hold that the trial court properly denied the

defendant’s suppression motion, did not permit the introduction of inadmissible hearsay, and

committed no reversible error in sentencing the defendant. The judgment of the trial court is,

therefore, affirmed.

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___________________________________

JAMES CURWOOD WITT, JR., JUDGE

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