State v. Brian Roberson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

FILED

December 21, 1998

SEPTEMBER 1998 SESSION

Cecil W. Crowson

Appellate Court Clerk

STATE OF TENNESSEE, )

)

Appellee, ) C.C.A. No. 01C01-9801-CC-00043

)

vs. ) Williamson County

)

BRIAN ROBERSON, ) Honorable Donald P. Harris, Judge

)

Appellant. ) (Sale of Cocaine)

)

FOR THE APPELLANT: FOR THE APPELLEE:

TRIPPE S. FRIED JOHN KNOX WALKUP

302 Third Ave. South Attorney General & Reporter

Franklin, TN 37064

LISA A. NAYLOR

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

Nashville, TN 37243

JOSEPH D. BAUGH, JR.

District Attorney General

21st Judicial District

Williamson County Courthouse

P.O. Box 937

Franklin, TN 37065-0937

ROBBIE BEAL

Assistant District Attorney

P.O. Box 937

Franklin, TN 37065-0937

OPINION FILED: _____________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE

Opinion

A Williamson County Circuit Court jury convicted the defendant, Brian

Roberson, of a Class B felony sale of cocaine under Tennessee Code Annotated

section 39-17-417 and recommended a fine of $15,000. The trial judge sentenced

him to nine years incarceration with the Department of Correction as a Range I

offender and imposed a fine of $2,000. In this rule 3 appeal, the defendant raises

four issues:

1. Whether the evidence was sufficient to support the conviction;

2. Whether the trial court erred in admitting into evidence the

defendant’s tape-recorded statement pertaining to his other indictments;

3. Whether the trial court erred in allowing a state witness to testify

as to the truthfulness of the state’s confidential informant; and

4. Whether the trial court erred in ruling that the state could impeach

the defendant as a witness, should he have testified, through admitting proof of a

recent conviction in a drug case. After a review of the case, we affirm the judgment

of the trial court.

Chris Clausi, an officer with the Franklin Police Department, testified

that he and officer John Brown conducted an undercover drug-purchase operation

in Williamson County on October 8, 1996. The officers fitted a “wire” on Carl Hayes,

a private citizen who agreed to serve as an undercover operative to buy drugs.

Mr. Hayes went to a street location in Franklin. He testified that he

was not looking for anyone in particular but rather for anyone who came along who

he thought would sell him crack cocaine. He testified he saw the defendant driving

by in a car. Hayes “flagged him down” and got into the car. The defendant asked

Hayes if he was “wired up,” but Hayes denied that he wore a wire. The defendant

spotted the car in which Officer Clausi was sitting and expressed his fear that the

police might be surveilling Hayes and himself.

The audiotape of the radio-transmitted conversation was garbled and

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difficult to understand. Clausi testified the contemporaneous transmission which he

had heard from his car was easier to understand than the version recorded on the

tape. He intermittently played portions of the tape and testified that at one point the

defendant said to Hayes, “I can’t take no more indictments or something like that.”

A little later, the tape reflects that the defendant said, “I can’t afford this s _ _ _

man.” The defendant with Hayes in the car drove away, passing in close proximity

to Clausi’s parked car. Clausi testified that he positively identified the defendant as

the person who drove the vehicle.

Hayes testified that, despite the defendant’s reservations about selling

drugs to him, he purchased several rocks of crack cocaine from the defendant with

the $80 furnished to him by the officers. After the sale he met with Officers Clausi

and Brown.

Brown testified that he searched Hayes and obtained the cocaine

which Brown inserted in a plastic envelope. The parties stipulated that the material

inside the envelope was duly delivered to the Tennessee Bureau of Investigation

lab for chemical analysis and then returned to the Franklin Police Department in the

form in which it was presented in court as an exhibit to Brown’s testimony. Glen

Everett, a forensic chemist for the TBI lab, testified that the material was .6 grams

of cocaine base.

During the state’s direct examination, Carl Hayes testified that at the

time of his testimony he was incarcerated in the Williamson County jail and that the

incarceration related back to a 1995 conviction for selling cocaine. During cross-

examination, Hayes testified that he had failed a drug screen in the spring of 1997,

a few months prior to the defendant’s August 1997 trial. He testified that he had

been paid by the police department for some of his undercover activities. On cross-

examination, he admitted that he participated in the sting operation because he “got

into trouble with the law” and that he hoped to help himself by assisting as an

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undercover operative. Hayes admitted that he may be the father of a female child

and that he paid no support for such child. He further admitted that he knew how

to buy drugs, and he testified on cross-examination that he was not sure if he was

paid for the October 8, 1996 activity.

During Brown’s testimony, the defendant objected when the state

asked Brown on direct examination whether Brown believed Mr. Hayes to be

truthful. The objection was overruled, and Brown testified that Hayes had always

been truthful with the Franklin Police Department.

After the state rested, the trial court heard arguments concerning the

state’s proposed use of the defendant’s prior drug conviction as impeachment

evidence had the defendant testified. The court ruled that the probative value of the

prior conviction outweighed any unfair prejudice and that the state would be allowed

to impeach the defendant with this conviction. The defendant offered no proof.

I. Sufficiency of the Evidence.

The defendant challenges the sufficiency of the evidence. When an

accused challenges the sufficiency of the convicting evidence, this court must

review the record to determine if the evidence adduced at trial is sufficient “to

support the finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn.

R. App. P. 13(e). This rule is applicable to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of direct and circumstantial

evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determining the sufficiency of the convicting evidence, this court

does not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990). Nor may this court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn.

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298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to

afford the state the strongest legitimate view of the evidence contained in the record

as well as all reasonable and legitimate inferences which may be drawn from the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of the witnesses, the weight and

value to be given the evidence, as well as all factual issues raised by the evidence

are resolved by the trier of fact, not this court. Id. at 835. In State v. Grace, 493

S.W.2d 474, 476 (Tenn. 1973), our supreme court said, “A guilty verdict by the jury,

approved by the trial judge, accredits the testimony of the witnesses for the State

and resolves all conflicts in favor of the theory of the state.”

Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused, as the appellant, has the

burden in this court of illustrating why the evidence is insufficient to support the

verdicts returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). This court will not disturb a verdict of guilt due to the sufficiency of the

evidence unless the facts contained in the record are insufficient, as a matter of law,

for a rational trier of fact to find that the accused is guilty beyond a reasonable

doubt. Id.

Under Tennessee Code Annotated section 39-17-417, it is an offense

to sell cocaine knowingly. Tenn. Code Ann. § 39-17-417 (a), (c) (1991). The jury

heard the testimony of Carl Hayes and Officers Clausi and Brown, and it obviously

accredited these witnesses. In particular, Hayes testified that he purchased from

the defendant material which chemical analysis proved to be cocaine. There was

no evidence to contradict this testimony, and the testimony was corroborated by

Clausi and Brown. The evidence is clearly sufficient to support the guilty verdict.

II. Character Evidence.

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In his next issue, the defendant asserts that the trial court erred when

it admitted into evidence the defendant’s tape-recorded statements that he did not

want any “more indictments.” Prior to trial, the defendant moved to exclude the

portion of the surveillance tape in which the defendant talks about an indictment.

The trial court found that the challenged evidence was relevant on the issue of

casual exchange and overruled the defendant’s motion.

Tennessee Rule of Evidence 403 authorizes the exclusion of even

relevant evidence if “its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Tenn. R. Evid. 403. Under rule 404, character evidence is

generally inadmissible “for the purpose of proving action in conformity with the

character or trait on a particular occasion.” Tenn. R. Evid. 404(a). The defendant

asserts that the proof about an existing indictment violates rule 404(a) because it

suggests that the defendant is a drug dealer and, for that reason, likely to have

committed the offense on trial. However, rule 404(b) provides that evidence of

“other crimes, wrongs, or acts” may be admissible for purposes other than to show

that the impugned person acted in conformity with the bad character trait. Under

rule 404(b), such evidence may be admissible if the trial court, after a jury-out

hearing, determines that “a material issue exists other than conduct conforming with

a character trait” and that the probative value is not outweighed by the danger of

unfair prejudice. Tenn. R. Evid. 404(b). The comments to section 404 illustrate that

the “other” material issues that could support the use of the evidence include

“identity (including motive and common scheme or plan), intent, or rebuttal of

accident or mistake.” Tenn. R. Evid. 404, Advisory Comm’n Comments. The trial

court admitted the evidence based upon its finding that it was probative on the issue

of casual exchange and that it was not unduly prejudicial.

Tennessee Code Annotated section 39-17-418 establishes a Class

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A misdemeanor offense where a person “knowingly possess[es] or casually

exchange[s] a controlled substance.” Tenn. Code Ann. § 39-17-418(a), (c) (1997).

Section 39-17-419 allows the trier of fact to infer from the “amount of a controlled

substance ... possessed by an offender, along with other relevant facts surrounding

the arrest, that the controlled substance ... [was] possessed with the purpose of

selling ....” Tenn. Code Ann. § 39-17-419 (1997) (emphasis added). Also, this

section allows an inference “from circumstances indicating a casual exchange

among individuals of a small amount of a controlled substance ... that the controlled

substance ... [was] possessed not with the purpose of selling or otherwise

dispensing in violation of the provisions of § 39-17-417(a).” Id. (emphasis added).

It is clear that the purpose of the accused in possessing or exchanging

a controlled substance is one of the key dynamics in determining simple possession

or casual exchange. Obviously, “purpose” is closely related to intent. As such, the

trial court’s basis for admitting the evidence is within the purview of the “other”

material purposes for character evidence as those purposes are suggested by the

Advisory Commission Comments to section 404.

However, we cannot discern how evidence about the defendant’s

indictments would be probative of casual exchange issues. If the proof were offered

to show that the defendant was aware of the unlawfulness of selling to Mr. Hayes,

the obvious response is that even a casual exchange is unlawful. See Tenn. Code

Ann. § 39-17-418 (a), (c) (1997). The defendant’s furtive behavior is just as

suggestive of a concern that he would be charged with a misdemeanor under

section 39-17-418 as it is that he would be charged with a section 39-17-417 felony.

If the proof were offered in order to imply that the outstanding indictment was the

result of drug offending and that the fact of a previous offense or offenses belies a

claim of casual exchange on October 8, 1996, the effort again fails because there

is no proof that the subject of the outstanding indictment was drugs or that, if drugs,

the indictment was not based upon a casual-exchange misdemeanor. In reality,

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the state’s claim that the evidence is probative of a non-casual exchange is an

artiface to show that the defendant is a man who, because of his past drug-dealing,

is likely to have sold drugs on the date in question. The trial court erred in basing

admission on this theory. 1

On the other hand, we hold this error was harmless. Tenn. R. Evid.

103(a) (no error committed in rulings on excluding evidence “unless a substantial

right of the party is affected”); Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). It

is unlikely the error affected the verdict. The state presented a strong case in which

a drug sale was narrated by a witness-participant whose testimony was

corroborated by two experienced police officers. The state confiscated the

contraband and used it as evidence. The defendant’s presence at the scene was

firmly established. We see no possibility that the use of the evidence “affected the

result of the trial on the merits.” Tenn. R. Crim. P. 52(a).

III. Rule 608 Issue.

A.

In the defendant’s next issue, he asserts that the trial court erred in

admitting, over his objection, Officer Brown’s testimony that Carl Hayes had always

been truthful with the police department.

Tennessee Rule of Evidence 608 provides, in part:

1

We have reviewed this court’s recent decision in State v. Steve

Edward Houston, No. 01C01-9711-CC-00510 (Tenn. Crim. App., Nashville, Oct.

28, 1998), and find it distinguishable from the present case. In Steve Edward

Houston, this court was reviewing the trial court’s refusal to sever four counts

alleging drug transactions. In determining whether evidence of one offense

would be admissible upon a trial of the others pursuant to Rule of Criminal

Procedure 14(b)(1), the court assessed the proof in each of the four counts and

found a “distinctive design common among the four occurrences” which belied

the defendant’s claim of casual exchange. Steve Edward Houston, slip op. at 9.

The denial of severance was affirmed. In the present case, the trial court was

unaware of the circumstances of the outstanding indictment(s) and could not

assess the relevancy of this proof in relation to casual exchange issues.

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(a) ... The credibility of a witness may be attacked or supported by

evidence in the form of opinion or reputation, but subject to these

limitations: (1) the evidence may refer only to character for

truthfulness or untruthfulness, and (2) the evidence of truthful

character is admissible only after the character of the witness for

truthfulness has been attacked.

Tenn. R. Evid. 608(a).

Without question, Hayes’s credibility was attacked through the

defendant’s cross-examination which explored Hayes’s prior conviction, his recent

re-offending, his possible paternity of an illegitimate child whom he did not support,

his incarceration at the time of the testimony, and his possible mercenary and/or

self-serving reasons for participating in the sting operation. The defendant’s intent

in this cross-examination is confirmed in his final argument, in which Hayes’s lack

of credibility was presented as a key component of the defense. Accordingly, both

conditions of rule 608(a) have been satisfied.

B.

The defendant also complains that the state failed to lay an adequate

foundation for Brown’s opinion or statement of reputation. The defendant relies

upon State v. Dutton, 896 S.W.2d 114 (Tenn. 1995). In Dutton, the defense was

not allowed to present as a witness the grandfather of the rape victim to testify to

the victim’s bad character for truthfulness. Dutton, 896 S.W.2d at 117. At a jury-out

hearing, the trial court determined that the defense had laid no foundation for the

grandfather’s knowledge of the “victim’s general reputation for telling the truth.” Id.

Indeed, the grandfather did not claim to be familiar with the victim’s reputation for

truthfulness in her community. Id. However, our supreme court held that the trial

court erred “in refusing to admit the testimony of the victim’s grandfather as to his

opinion of the character of the victim for truthfulness.” Id.at 118.

Although the supreme court ruled that the trial court found an

insufficient foundation to support reputation testimony, it found that a sufficient

foundation was established for opinion testimony. When the form of attack is

through reputation evidence, the attacking party must establish the second

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witness’s basis for knowing the various components of the first witness’s reputation.

With respect to opinion evidence, it must be shown that the opining witness is

personally familiar with the attacked witness’s character; however, the use of

opinion evidence does not require a showing that the opining witness knows the

primary witness’s reputation in the latter’s community. The critical basis of

knowledge of the opinion character witness is a “personal impression of the primary

witness’s character for truthfulness.” Id.

The grandfather’s testimony that he had been around the victim-

witness on weekends for a number of years established his personal familiarity with

her character for truthfulness. The high court ruled that the grandfather should have

been allowed to testify via opinion testimony.

Likewise, the record in the present case demonstrates that Officer

Brown was familiar with Carl Hayes. Brown had worked with Hayes in Hayes’s

capacity as an undercover operative for the department in other drug cases.

Through his testimony, Brown evinced a personal acquaintance and familiarity with

Hayes. As in Dutton, an adequate foundation for opinion testimony was

established. There was no error in allowing Brown’s testimony.

IV. Rule 609 Issue.

The defendant’s final issue is the trial court erred in ruling that the

defendant could be impeached as a witness, had he testified, via a prior Williamson

County conviction for sale of cocaine that was rendered on April 10, 1997.

Subject to certain conditions for admissibility, Tennessee Rule of

Evidence 609 authorizes the use of proof of a witness’s prior convictions in order

to attack the witness’s credibility. Tenn. R. Evid. 609(a). One condition requires

that the prior crime be either a felony or a crime involving dishonesty or false

10

statement. Tenn. R. Evid. 609(a)(2). In addition, regardless of whether the crime

involves dishonesty or false statement, State v. Jerry Lee Finch, No. 02C01-9309-

CC-00224, slip op. at 4-5 (Tenn. Crim. App., Jackson, 1995), perm. app. denied

(Tenn. 1995), the trial court must determine whether the “convictions’s probative

value on credibility outweighs its unfair prejudicial effect on the substantive issues.”

See Tenn. R. Evid. 609(a)(3). The risk of unfair prejudicial effect is heightened when

the prior conviction is for an offense that is the same as, or similar to, the offense

on trial. State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). The trial

court must assess the similarity between the prior crime and the crime on trial, and

then the court must assess the relevance the prior crime has to the issue of

credibility. Id. “The standard is not whether there is any prejudice to the defendant

by allowing the State to use the prior conviction for impeachment, but whether the

possible prejudice is outweighed by the probative value of the evidence as to the

defendant’s credibility as a witness.” State v. Roberts, 943 S.W.2d 403 (Tenn.

Crim. App. 1996), perm. app. denied (Tenn. 1996).

In reviewing the trial court’s determination, this court “does not re-

evaluate whether the probative value of the . . . prior convictions outweighs the

possible prejudicial effect it might have had. We only evaluate whether the trial

judge abused his discretion. . . .” Id; see also State v. Harris, 839 S.W.2d 54, 66

(Tenn. 1992).

In reviewing the trial court’s exercise of discretion in the present case,

we readily discern the similarity of the prior crime to the crime on trial. Subject to

possible variations for the amount of cocaine sold, the crimes are identical. Both

crimes resulted in convictions for the sale of cocaine. “However, the fact that a prior

conviction involves a similar crime for which the defendant is being tried does not

automatically require its exclusion.” State v. Robert Harrison Blevins, No. 03C01-

9606-CC-00242, slip op. at 10 (Tenn. Crim. App., Knoxville, May 23, 1997). “[T]he

trial court must analyze the prior conviction and the offense on trial to determine

11

whether the conviction’s probative value on credibility is outweighed by the danger

of unfair prejudice on the substantive issues.” Id. In the present case, the court

concluded that the probative value weighed heavier in the balance. For the reasons

explained below, we hold that this discretionary decision should not be disturbed.

In reaching this conclusion, we first recognize that prior convictions of

crimes of dishonesty have “greater weight to their probative value regarding

credibility.” Id. For instance, prior convictions based upon theft crimes have high

value as impeachment evidence. See, e.g. Robert Harrison Blevins, slip op. at 10;

Phillip S. Roberts, slip op. at 7-11; State v Miller, 737 S.W.2d 556, 559-60 (Tenn.

Crim. App. 1987); State v. Hardison, 705 S.W.2d 684, 686 (Tenn. Crim. App. 1987).

Although this court has held that “[p]ossession of marijuana does not

involve dishonesty,” State v. Baker, 625 S.W.2d 724, 728 (Tenn. Crim. App. 1981),

overruled on other grounds, State v. Holt, 691 S.W.2d 520, 521 (Tenn. 1984); see

also State v. Tommy Lee Hill, Jr., No. 02C01-9212-CC-00285, slip op. at 2 (Tenn.

Crim. App., Jackson, Dec. 1, 1993), we have held otherwise when the impeaching

conviction is based upon a sale of controlled substances. State v. Gibson, 701

S.W.2d 627 (Tenn. Crim. App. 1985). In Gibson, a pre-rule case, a prior conviction

for selling drugs was allowed to impeach the defendant-witness in a drug-sale

prosecution. This court said, “The very nature of the act of dealing in drugs is

indicative of dishonesty. . . .” Gibson, 701 S.W.2d at 629. The court based this

conclusion upon its observation that drug dealing “express[es] ... the design and

determination to violate the law.” Id.

Although the defendant is correct when he argues that admitting all

convictions which reflect a design to violate the law would embrace virtually all

convictions which are based on mental states of knowingness or intent, we believe

the act of drug dealing is suggestive of dishonesty because the dealer is engaged

in a clandestine commercial enterprise which is carried out deceitfully beyond the

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scrutiny of society’s institutional watchdogs such as health code enforcers, licensing

authorities, and taxing agencies. See State v. Ronald E. Tomes, No. 03C01-9612-

CR-00477, slip op. at 8-9, n.4 (Tenn. Crim. App., Knoxville, Aug. 20, 1997); see also

Drug Money Laundering: Hearings on Pub. L. No. 99-570 Before the Senate

Committee on Banking, Housing and Urban Affairs, 99th Cong. 1st Sess. 11, 34-35

(1985) (statements of Richard Wassenaar, Asst. Commissioner for Criminal

Investigations, Internal Revenue Service, and William Von Raab, Commissioner,

U.S. Customs Service) (commenting upon significant IRS investigative time devoted

to tax-evading drug traffickers and the large amounts of income tax revenues that

go uncollected from illegal drug business).

Although the mere possession of a controlled substance for personal

use may not involve dishonesty for purposes of rule 609, the dishonesty and deceit

implicit in the illegal sale of drugs causes the convictions based upon such illegal

sales to be valuable as impeachment evidence. See State v. Ronnie Roberts, No.

02C01-9502-CR-00049, slip op. at 10-12 (Tenn. Crim. App., May 20, 1996), perm.

app. denied (Tenn. 1996); see also State v. Tune, 872 S.W.2d 922, 926-27 (Tenn.

Crim. App. 1993) (within trial court’s discretion to determine that felony drug

convictions were admissible to impeach defendant’s credibility as a witness in a

homicide case).

Aside from the dishonesty aspect of the crime underlying the prior

conviction, the value of the impeachment evidence is also increased when the

credibility of the defendant as a witness is “an important issue.” Robert Harrison

Blevins, slip. op. at 10 . When the defendant makes his credibility an important

issue, such as by “denying any wrongdoing and asserting legitimate conduct,” Id.,

this court is “not inclined to question the trial court’s allowing . . . the convictions for

the purpose of impeachment.”2 Id. We note that Blevins, who was prosecuted for

2

We infer the tack the defendant would have taken had he testified

based upon his final argument to the jury wherein he argued that the state had

not proven that the defendant sold the crack cocaine to Hayes.

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burglary and vandalism, was properly impeached with prior convictions for burglary,

larceny and robbery. In Phillip S. Roberts, this court noted that the defendant in an

automobile burglary and attempted theft case might have been expected to “attempt

to convince the jury that he had some intent other than to commit a felony or theft,

such as to joyride, a misdemeanor . . . .” Phillip S. Roberts, slip op. at 10. In such

a situation, which is clearly analogous to the present case, the Roberts court found

the defendant’s credibility to be a “critical issue.” Id. “Accordingly,” the court said,

“ it was within the trial court’s discretion to allow the State to use the defendant’s

prior convictions [breaking and entering and larceny] to impeach his credibility as

a witness [in a burglary and attempted theft case].” Id.

Based upon the principles discussed above, we find Roberson’s prior

convictions for selling cocaine were highly probative because (1) they involved

dishonesty and (2) his credibility, had he testified, would have been an important

issue in the case. In Robert Harrison Blevins and Phillip S. Roberts, in which the

crimes underlying the prior convictions were virtually identical to the offenses on

trial, this court deferred to the trial court’s discretion in weighing unfair prejudicial

effect against probative value because of the concurrence of the dishonesty aspect

of the prior conviction and the importance of the defendant’s credibility had he been

a witness. We are constrained to do likewise in this case. The trial court heard

thorough arguments concerning the use of the defendant’s prior drug-sale

conviction for impeachment purposes and thoughtfully deliberated the question.

We find no abuse of discretion.

The judgment of the trial court is affirmed.

________________________________

JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

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____________________________________

GARY R. WADE, PRESIDING JUDGE

____________________________________

THOMAS T. WOODALL, JUDGE

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