The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1996 SESSION
FILED
August 18, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
Appellate C ourt Clerk
)
Appellee, ) No. 02C01-9512-CC-00389
)
) Madison County
v. )
) Honorable Franklin Murchison, Judge
)
GEORGE E. MARTIN, JR., ) (Possession with the intent to sell cocaine)
)
Appellant. )
For the Appellant: For the Appellee:
George Morton Googe Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Pamela J. Drewery Robin L. Harris
Assistant Public Defender Assistant Attorney General of Tennessee 227
W. Baltimore Street 450 James Robertson Parkway
Jackson, TN 38301 Nashville, TN 37243-0493
Jerry Woodall
District Attorney General
and
Nick Nicola
Assistant District Attorney General
P.O. Box 2825
Jackson, TN 38302
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, George E. Martin, Jr., appeals as of right from his
conviction by a jury in the Circuit Court of Madison County for possession with the intent
to sell cocaine, a Class B felony. The trial court sentenced the defendant as a Range I,
standard offender to nine years to serve ninety days in the county jail and eight years
and nine months on community corrections. The trial court also imposed a fine of two
thousand dollars. On appeal, the defendant contends that:
(1) the trial court erred by denying his motion to suppress;
(2) the prosecutor engaged in improper argument by
commenting on the absence of witnesses;
(3) the trial court erred by allowing into evidence the cocaine
seized by the officers because the state failed to establish the
proper chain of custody of the evidence, by failing to take
judicial notice of newspaper articles reporting the desecration
of the Drug Task Force’s evidence vault, and by not allowing
the defendant more time to gather proof regarding the
desecration; and
(4) the trial court erred in sentencing the defendant because it
failed to consider mitigating factors and improperly considered
an enhancement factor.1
We hold that the trial court did not err. We affirm the defendant’s judgment of
conviction.
Officers Greg Robinson and Tim Willis of the Madison County Sheriff’s
Department were conducting a drug sweep at Merry Lane Courts. Initially, they
observed the defendant walking towards them through a playground approximately
1
Although the defendant does not present it in his statement of the issues, he begins the
argument portion of his brief with a claim that the guilty verdict “is against the great weight and
preponderance of the evidence,” pointing to perceived weakn esses in the sta te’s pro of. This claim
pres ents no cogn izable iss ue. See State v. Matthews, 805 S.W .2d 776, 778-7 9 (T enn . Crim . App . 1990).
Appellate review of the sufficienc y of the e viden ce d oes not allow us to rew eigh the eviden ce o r to
consider how it might preponderate. Rather, we must afford the state the strongest legitimate view of the
evidence contained in the record, including all reasonable and legitimate inferences which may be drawn
there from . State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 1978). Then, it is only when the facts, so
viewed, are insufficient as a matter of law for a rational trier of fact to find guilt beyond a reasonable doubt
may we conclude that the evidence is insufficient. In this respect, our review of the evidence in this case
leads us to the conclusion that the defendant was convicted upon sufficient evidence.
2
seventy-five yards away. When the defendant was within fifty yards of the officers, the
defendant reached inside his pocket, removed something and dropped it on the ground.
The defendant then turned to the right and began walking away from the officers.
Officer Willis stopped the defendant and asked him for identification. Meanwhile,
Officer Robinson returned to the playground area to search for the item dropped by the
defendant. Officer Willis permitted the defendant to leave before Officer Robinson
discovered a plastic bag containing a substance that appeared to be crack cocaine.
The plastic bag contained fourteen rocks of a cocaine-based substance having a street
value of about two hundred and fifty to two hundred and eighty dollars. The officers
then arrested the defendant as he entered Kentucky Fried Chicken, finding three
hundred and ten dollars in cash and a pager on the defendant.
I. MOTION TO SUPPRESS
The defendant contends that the trial court should have granted his
motion to suppress in that the police lacked probable cause for the warrantless stop of
him. However, the defendant has failed to raise the issue in his motion for new trial.
The failure to raise the issue in the motion for new trial constitutes a waiver of the issue
on appeal. See T.R.A.P. 3(e) and 36(a). Also, the defendant has not included a
transcript of the hearing on the motion to suppress in the record on appeal. It is the
defendant’s duty “to have prepared a transcript of such part of the evidence or
proceedings as is necessary to convey a fair, accurate and complete account of what
transpired with respect to the issues that are the bases of appeal.” T.R.A.P. 24(b).
When necessary parts of the record are not included on appeal, the court must
presume that the trial court’s ruling was correct. State v. Oody, 823 S.W.2d 554, 559
(Tenn. Crim. App. 1991). Such is the case before us.
3
II. PROSECUTOR ARGUMENT
Next, the defendant contends that the prosecutor committed prosecutorial
misconduct during his closing argument by commenting on the absence of witnesses.
He argues that the witnesses were not knowledgeable about material facts and could
have testified only to collateral matters. He asserts that the comments were especially
damaging because the defendant’s credibility had been attacked.
During the trial, the defendant testified that he had borrowed his sister’s
car to visit his cousin, Yolanda Brown, at Merry Lane Courts. He said that he had left
Brown’s apartment to walk to Kentucky Fried Chicken to get something to eat at the
time that he was arrested. He also stated that he was living with his mother at the time.
Regarding the three hundred and ten dollars that he had with him at the time of his
arrest, the defendant claimed that he had received approximately one hundred and fifty
dollars from an income tax refund and that he had won the rest of the money gambling.
The defendant also testified that he had the pager to keep in contact with his friends.
He conceded that he had lied to the officers about the source of the money. On cross-
examination, the defendant admitted that his mother, sister, cousin and his friends who
contacted him through his pager were not there to testify.
In relevant part, the prosecutor’s argument was as follows:
Now, . . . the Judge is going to instruct you that you can
weigh the credibility of witnesses and he is also going to
instruct you that the burden of proof is upon the State. And
that burden never shifts. However, the defendant here today,
it’s his cho[ic]e to present testimony and puts his own
credi[]bility into issue that you can weigh.
Now, imagine this if it were. If Investigator Robinson
had testified we found crack cocaine, we saw the defendant
drop it, and that was the only proof. We wouldn’t bring Willis
to say he had all the money, we didn’t bring in the lab person
to say this in fact was crack cocaine. You may very well say,
you didn’t carry your burden through. And, that would be fine.
But, we brought in these people to show you each step that
was taken. The defendant, on the other hand doesn’t even
bring in his own mother to say in fact that he did live in
4
Denmark, at some time. Doesn’t bring in the people that he
was supposed to be gambling with. Doesn’t bring in all these
people who needed to contact him, by use of his pager.
Doesn’t bring in his sister, who’s car he said he borrowed and
most of all, and most importantly, doesn’t even bring in the
cousin that he says he was there to visit. Now, would you allow
the State to take steps like that?
MS. DREWERY: Your Honor. The burden’s different for
the State, than it is for the Defense.
THE COURT: Well, the burden is on the State. The
Defendant doesn’t have to prove anything. The state has to
prove the case.
The prosecutor continued his argument by acknowledging that the state had the burden
of proof in the case, but asserted that the jury was not required to accept the
defendant’s proof without question.
The prosecutor also stated that the defendant had offered no plausible
explanation for being in a high crime area, arguing:
You have his word, but none of the corroborating. None of the
people, who could supposedly back his word up. And, what’s
his word worth? Well, he’s told you once, at least once, that
he lied to the officers, while out there on the scene. He lied
about where the money came from. Perhaps, he lied about
what he was actually doing out there.
The prosecutor then argued that the defendant wanted the jury to believe that the
officers had lied but that “he doesn’t offer anything to back it up. He doesn’t offer the
supposed cousin, he was out there visiting.”
The defendant refers to the comments made by the prosecutor as
references to missing witnesses for the purpose of the jury inferring that the witnesses’
testimony would have been unfavorable had they testified. “As a predicate for
comment on a missing witness, the evidence must show that the witness had
knowledge of material facts, that a relationship exists between the witness and the party
that would naturally incline the witness to favor the party and that the missing witness
was available to the process of the Court for the trial.” Delk v. State, 590 S.W.2d 435,
5
440 (Tenn. 1979). The mere fact that a party fails to produce a particular person who
may have some knowledge of the facts involved does not justify application of the
inference. State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984).
The initial problem with the defendant’s position, though, is that he did not
object to the argument based upon the missing witness inference. Rather, he objected
to the state’s argument because it tended to shift the burden of proof to him. The trial
court sustained this objection and gave a curative instruction, which was immediately
followed by the state’s acknowledgment that the defendant did not have any burden of
proof. The defendant may not object on one ground and then assert a new or different
theory to support the objection in the motion for new trial or on appeal. State v.
Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994). Raising a new ground on
appeal for objecting to the introduction of evidence results in a waiver of the issue on
appeal. Id. at 635.
In any event, we do not believe that the prosecutor’s argument was
improper as claimed by the defendant. During cross-examination, the prosecutor asked
the defendant, without objection, whether his mother, sister, cousin and friends who
contacted him on his beeper were present to testify. The defendant stated that they
were not present and admitted that they could have testified in his behalf. In this
respect, the prosecutor’s reference to the witnesses’ absence was a permissible
comment on the evidence.
Also, we see some defusion from the missing witness inference in that the
prosecutor’s comments actually focused upon the defendant’s credibility and not
directly upon what could be inferred from “missing witnesses” about their potential
testimony. In this context, we do not believe that the prosecutor’s argument was
6
improperly prejudicial to the defendant, and thus, it did not constitute prosecutorial
misconduct. See Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
III. INTRODUCTION OF COCAINE
The defendant asserts that the trial court erred by allowing evidence of
cocaine over his objection regarding the adequacy of the chain of custody. He argues
that the trial court should have either taken judicial notice of newspaper articles2
reporting the “desecration” of the Drug Task Force’s evidence vault or given him more
time to gather proof regarding the desecration. We hold that the trial court did not err
by permitting the introduction of the cocaine into evidence.
At trial, Officer Greg Robinson testified that he took the plastic bag that he
retrieved from the ground near the playground, sealed it in the appropriate evidence
envelopes with an evidence tag, and placed it in the evidence vault. Officer Robinson
identified the plastic bag and the evidence bag containing the case number, the charge,
the defendant’s name, and the seals with his initials on the tape. He stated that he took
the evidence bag from the vault and brought it to court. He said that the bag was
sealed and had one additional piece of tape on it which was added by the crime lab.
During the prosecutor’s questioning of Officer Robinson regarding the
chain of custody of the cocaine, a jury-out hearing was held at which defense counsel
objected to the admission of the cocaine, stating that the Drug Task Force had
experienced problems with its evidence room. The prosecutor asserted that defense
counsel was referring to articles contained in The Jackson Sun but stated that defense
counsel had no proof of the problem. The trial court overruled the defendant’s
objection, stating that the state must establish chain of custody.
2
W e note that the newspaper articles are not contained in the record. It is the
defend ant’s o bligation to prepare an adeq uate reco rd for app ellate review. T .R.A .P. 24 .
7
Officer Willis testified that the evidence was placed inside the vault and
that it was not removed until he took it to the crime lab for analysis. TBI Agent Lisa
Mayes testified that she received a sealed, plastic bag of cocaine from Officer Willis.
She said that after analyzing the substance, she placed the plastic bag back inside the
evidence bag, sealed it, wrote the lab number and her initials on the bag, and then
placed the evidence inside the evidence vault. At trial, she identified the evidence and
confirmed that the lab number matched that of the evidence she analyzed.
At the motion for new trial, the defendant argued that the state had failed
to establish the chain of custody of the cocaine. The defendant asserted that the trial
court could take judicial notice that the Drug Task Force’s vault was broken into based
upon the newspaper articles, but the prosecutor objected to the introduction of the
articles. Defense counsel then requested that more time be allowed to prove that the
vault had been broken into, and the prosecutor responded, “We had a trial.” The trial
court did not directly rule on either request, but instead stated, “Go ahead.” Defense
counsel proceeded to her next issue contained in the motion for new trial. At the
conclusion of the hearing, the trial court denied the defendant’s motion for new trial.
A.
First, the defendant argues that the trial court erroneously allowed
evidence of the cocaine because the state failed to show the proper chain of custody of
the cocaine. The state responds that the record demonstrates that the testimony of the
officers and Agent Mayes sufficiently established the chain of custody. We agree.
Before tangible evidence can be introduced, “a witness must be able to
identify the evidence or establish an unbroken chain of custody.” State v. Goodman,
643 S.W.2d 375, 381 (Tenn. Crim. App. 1982); Bolen v. State, 544 S.W.2d 918, 920
(Tenn. Crim. App. 1976). The purpose underlying this requirement is “to demonstrate
8
that there has been no tampering, loss, substitution, or mistake with respect to the
evidence.” State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993). However,
the identity of such evidence need not be proven beyond all possibility of doubt, but
rather the circumstances must establish a reasonable assurance of the identity of the
evidence. Ritter v. State, 3 Tenn. Crim. App. 372, 462 S.W.2d 247, 250 (1970).
Whether the requisite chain of custody has been sufficiently established to justify
admission of evidence is a matter committed to the sound discretion of the trial court,
and the trial court’s determination will not be overturned in the absence of an abuse of
that discretion. Goodman, 643 S.W.2d at 381; Wade v. State, 529 S.W.2d 739, 742
(Tenn. Crim. App. 1975).
The evidence in this case is sufficient to establish an unbroken chain of
custody. The testimony of Officer Robinson, Officer Willis and Agent Mayes
establishes a reasonable assurance that the substance discovered by Officer Robinson
was the same substance which Agent Mayes tested and which was introduced at trial.
B.
Next, the defendant asserts that the trial court should have taken judicial
notice of newspaper articles reporting the desecration of the Drug Task Force’s
evidence vault. The state contends that the defendant did not request that the trial
court take judicial notice at trial but instead waited until the motion for new trial. The
state argues that the trial court could not take judicial notice of the articles absent a
request by the defendant. We hold that the trial court did not err by failing to take
judicial notice of the articles.
Judicial notice is governed by Rule 201, Tenn. R. Evid. A trial court may
take judicial notice of an adjudicative fact that is “not subject to reasonable dispute, in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)
9
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Tenn. R. Evid. 201(a) and (b). A request need not
be made for the trial court to take judicial notice, and such notice may be taken at any
stage of the proceedings. Tenn. R. Evid. 201(c) and (e).
Rule 201 does not permit a trial court to take judicial notice of hearsay
statements contained in the newspaper articles. Information contained in a newspaper
article is not “capable of accurate and ready determination by resort to sources whose
accuracy cannot be questioned.” Rather, the content of newspaper articles is hearsay
that does not fall within an exception to the hearsay rule, and thus is inadmissible at
trial. Tenn. R. Evid. 801, 802 and 803. Whether the vault had been tampered with was
a matter that was subject to reasonable dispute, and therefore, the defendant was
required to prove the fact. The defendant failed to do so in this case.
C.
The defendant contends that the trial court should have given him more
time to establish the desecration of the Drug Task Force’s vault. However, the
defendant did not make a request for additional time until the motion for new trial.
Under these circumstances, the defendant is not entitled to relief. See T.R.A.P. 36(a).
In any event, the defendant has failed to establish that the trial court abused its
discretion in admitting the evidence. We hold that the trial court did not err.
IV. SENTENCING
The defendant asserts that the trial court erred in sentencing the
defendant by failing to consider mitigating factors and by relying on enhancement
factors not provided by T.C.A. § 40-35-114. He argues that the trial court should have
10
imposed the minimum sentence with the lowest level of supervision. The state
contends that the trial court properly sentenced the defendant. We agree.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As
the Sentencing Commission Comments to this section notes, the burden is now on the
defendant to show that the sentence is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors
and principles that are relevant to sentencing under the 1989 Sentencing Act, we may
not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness which accompanies the trial
court's action 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). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. § 40-35-210(f)
(1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).
Also, in conducting a de novo review, we 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,
11
(6) any statement that the defendant made on his own behalf and (7) the potential for
rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see Ashby, 823 S.W.2d
at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).
The sentence to be imposed by the trial court is presumptively the minimum
in the range unless there are enhancement factors present. T.C.A. § 40-35-210(c).3
Procedurally, the trial court is to increase the sentence within the range based upon the
existence of enhancement factors and, then, reduce the sentence as appropriate for any
mitigating factors. T.C.A. § 40-35-210(d) and (e). The weight to be afforded an existing
factor is left to the trial court's discretion so long as it complies with the purposes and
principles of the 1989 Sentencing Act and its findings are adequately supported by the
record. T.C.A. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at
237; see Ashby, 823 S.W.2d at 169.
Before the sentencing hearing, the defendant filed a list of mitigating factors
for the trial court to consider. The defendant requested that the trial court consider that:
(1) the defendant’s conduct neither caused nor threatened
serious bodily injury;
(2) the defendant did not contemplate that his criminal conduct
would cause or threaten serious bodily injury;
(3) the defendant, because of his youth, lacked substantial
judgment in committing the offense; and
(4) the defendant is attempting to enroll in college.
See T.C.A. § 40-35-113(1), (6) and (13).
At the sentencing hearing, the then nineteen-year-old defendant testified
that he was not working but planned to attend technical school to study diesel
mechanics and auto body repair in the fall. The defendant conceded that he had not
3
For Class A felonies comm itted on or after July 1, 1995, the presumptive sentence is the
m idpoint of the rang e. See T.C.A. § 40-35 -210(c) (Sup p. 1996).
12
enrolled at school but asserted that he had talked to someone at the school regarding
enrollment and financial aid. He asserted that he had not looked for a job because of
his plans to go back to school. The defendant said that he was living in Nashville with a
friend and claimed that his mother was giving him money to pay the bills. He admitted
that he had been convicted of misdemeanor possession of marijuana approximately
three to four months earlier.
The presentence report reflects that the defendant, a high school
graduate, did not have any prior felony convictions. It shows that the defendant was
arrested when he was sixteen years old for shoplifting and was ordered to participate in
the street law program. Regarding his employment history, the report states that the
only job held by the defendant was with the United Parcel Service over the Christmas
holiday as a seasonal employee following his arrest for the present offense. The report
also reflects that the defendant denied having any alcohol or drug abuse problems.
At the conclusion of the sentencing hearing, the trial court sentenced the
defendant to nine years, with ninety days to be served in the county jail and the
remaining portion in community corrections. In sentencing the defendant, the trial court
concluded that the only enhancement factor that applied was his previous history of
criminal convictions or criminal behavior. See T.C.A. § 40-35-114(1). The trial court
also considered in mitigation that the defendant was eighteen years old at the time he
committed the offense. See T.C.A. § 40-35-113(6) (“The defendant, because of his
youth . . ., lacked substantial judgment in committing the offense.”).
The defendant argues that the trial court inappropriately considered the
seriousness of the crime for enhancement purposes. We note that the enhancement
factors set forth in T.C.A. § 40-35-114 have been determined to be the factors that may
be applied to increase the length of a defendant’s sentence. State v. Dykes, 803
13
S.W.2d 250, 258 (Tenn. Crim. App. 1990). We also note that although the seriousness
of the offense is not a factor contained in T.C.A. § 40-35-114, the 1989 Sentencing Act
requires the nature and characteristics of the criminal conduct to be considered for
sentencing purposes. See T.C.A. § 40-35-210. In this sense, to the extent that the
circumstances surrounding the criminal conduct relate to existing enhancement factors,
those circumstances may have substantial bearing on the weight that the sentencing
court places upon a particular factor. In any event, though, the record in the present
case does not reflect that the trial court enhanced the defendant’s sentence based
upon the seriousness of the offense. Rather, although the trial court stated the offense
was “very aggravating” and “terrible,” it stated that those circumstances were addressed
by the penalty involved for the offense being a Class B felony. Thus, the trial court did
not inappropriately consider the circumstances of the crime for enhancement purposes.
The defendant also contends that the trial court failed to address the list of
mitigating factors provided by the defendant before trial. We disagree. The record
shows that the trial court considered but rejected the mitigating factors offered by the
defendant. We agree with the trial court’s decision.
Regarding the defendant’s claim that he deserved the minimum sentence,
we note that the trial court’s decision regarding the weight to be afforded an existing
factor is discretionary as long as it complies with the purposes and principles of the
1989 Sentencing Act and its findings are adequately supported by the record. T.C.A. §
40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby,
823 S.W.2d at 169. We conclude that the record adequately supports the trial court’s
sentencing decision.
14
In consideration of the foregoing and the record as a whole, we affirm the
defendant’s judgment of conviction.
Joseph M. Tipton, Judge
CONCUR:
David H. Welles, Judge
Jerry L. Smith, Judge
15