State of Tennessee v. Barry Jamal Martin

08/16/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 11, 2022 Session

STATE OF TENNESSEE v. BARRY JAMAL MARTIN

Appeal from the Circuit Court for Giles County

No. CR-14901 Stella L. Hargrove, Judge

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No. M2021-00667-CCA-R3-CD

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The Defendant, Barry Jamal Martin, was convicted in the Giles County Circuit Court of

possession of one-half gram or more of cocaine with intent to sell, a Class B felony;

possession of not less than one-half ounce of marijuana with intent to sell, a Class E felony;

and possession of drug paraphernalia, a Class A misdemeanor, and received an effective

twelve-year sentence to be served in confinement. On appeal, the Defendant claims that

the evidence is insufficient to support the convictions; that a new trial is required due to

the grand jury and the petit jury being exposed to extraneous prejudicial information in the

“Confederate jury room”; that the trial court erred by denying defense counsel’s motion to

be relieved as counsel; that the trial court erred by excluding an undisclosed, exculpatory

letter written by the Defendant from evidence; that the trial court erred by allowing a police

officer to testify that a person could not possess more than two grams of cocaine for

personal use; that the trial court erred by denying alternative sentencing; and that he is

entitled to relief due to cumulative error. Based on our review, we affirm the judgments of

the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Evan P. Baddour (on appeal and at motion for new trial hearing), Pulaski, Tennessee, and

Beverly White (at trial), Lawrenceburg, Tennessee, for the appellant, Barry Jamal Martin.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant

Attorney General; Brent Cooper, District Attorney General; and Rebecca S. Parsons,

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

OPINION

FACTS

In June 2019, the Giles County Grand Jury indicted the Defendant for possession of

one-half gram or more of cocaine with intent to sell, possession of not less than one-half

ounce of marijuana with intent to sell, and possession of drug paraphernalia. The

Defendant went to trial in February 2020.

At trial, Lieutenant Justin Young of the Pulaski Police Department (“PPD”) testified

that he had been a law enforcement officer for nineteen years; that he had received drug

identification training; and that he was required to maintain “40 hours of in-service training

per year,” which included “narcotics-related” classes. He also had attended a drug

interdiction class in Mississippi and had received on-the-job training in the identification

of marijuana and cocaine.

Lieutenant Young testified that on April 26, 2019, he was working “third shift” and

pulled into the parking lot of the Pulaski Recreation Center at 1:33 a.m. A silver Pontiac

was in the parking lot, the driver’s seat was “leaned back,” and someone appeared to be in

the car. Lieutenant Young got out of his patrol car and approached the Pontiac. A man

was asleep in the driver’s seat. Lieutenant Young shined his flashlight into the Pontiac and

saw “a large, clear plastic bag in the center of the back seat that contained a large amount

of green leafy substance that [he] knew to be marijuana packaged in several small bags.”

He “[ran] the tag on the vehicle” and learned the Pontiac was registered to the Defendant.

Lieutenant Young identified the Defendant in the courtroom as the man who was in the

Pontiac.

Lieutenant Young testified that based on the time of night and the amount of drugs

“in plain view in the back seat,” he called for other officers to assist him. When they

arrived, Lieutenant Young woke the Defendant, placed him in handcuffs, and advised him

that he was under arrest for possession of narcotics. Lieutenant Young searched the

Defendant and found $800 cash in his pants pocket. The officer removed the large bag of

marijuana from the back seat. The bag contained seven different-sized bags of a green,

leafy substance and contained one clear bag of a white-powder substance, which later field-

tested positive for cocaine. Lieutenant Young weighed the large bag of marijuana on a set

of digital scales, and the bag weighed 305 grams. He weighed the bag of cocaine, and it

weighed ten grams. Lieutenant Young said that the amounts of marijuana and cocaine

were more than an average person would possess for personal use and that he sent the drugs

to the Tennessee Bureau of Investigation (“TBI”) for analysis.

Lieutenant Young testified that he searched the Pontiac and found about $500 cash

in the center console. He also found a set of digital scales and a couple of cellular

telephones in the vehicle. Lieutenant Young said that a green, leafy residue was on the lid

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of the digital scales and that digital scales were commonly used to weigh narcotics for

resale. Lieutenant Young’s patrol car recorded the incident, and the State played the video

for the jury.

Lieutenant Young testified that the total amount of cash found on the Defendant’s

person and in the Pontiac was $1,318 and that the money was in the following

denominations: one-dollar bills, two-dollar bills, “fives, tens, twenties, fifties,” and one-

hundred-dollar bills. He said that the denominations were “indicative to the sale of

narcotics” and that he did not find any items in the Pontiac, such as a glass smoking pipe

or rolling papers, to indicate the Defendant possessed the drugs for personal use. Based on

the amount of money, the denominations of the money, the amount of marijuana and

cocaine, and the presence of the digital scales, Lieutenant Young charged the Defendant

with possession of marijuana for resale and possession of cocaine for resale. He also

charged the Defendant with possession of drug paraphernalia for possessing the digital

scales.

On cross-examination, Lieutenant Young testified that about eight months before

this incident, he found the Defendant sleeping in a vehicle on the opposite side of town. In

that case, the Defendant resisted arrest, fought with the police over a marijuana cigarette,

and had a pistol under the driver’s seat. When Lieutenant Young first encountered the

Defendant on April 26, 2019, the Defendant was “sound asleep” in the Pontiac. The

Defendant “resembled” the man from the previous incident, and Lieutenant Young verified

that the Defendant was the same man via the Defendant’s vehicle registration. The

Defendant was “very startled” when the police officers woke him on April 26. Lieutenant

Young said he did not remember if clothing was on the back seat of the Pontiac.

Rebecca Hernandez, a special agent forensic scientist with the TBI, testified as an

expert in the identification and analysis of controlled substances that she analyzed an “off

white rock-like substance” found in the Pontiac. The substance was cocaine and weighed

8.29 grams. Agent Hernandez also analyzed “some plant material.” The plant material

was marijuana and weighed 87.56 grams. Agent Hernandez weighed some additional plant

material that was visually consistent with the marijuana, and it weighed 183.87 grams.

However, she did not analyze the additional plant material to determine if it was marijuana

because the total amount of marijuana was not going to exceed our Code’s “cutoff” of ten

pounds.

On cross-examination, Agent Hernandez testified that the TBI had a policy and

procedure in place to differentiate between hemp and marijuana. In this case, Agent

Hernandez “did instrumental analysis to determine that there was greater than one percent

THC content in this plant material.” Therefore, the plant material that weighed 87.56

grams met the legal definition of “marijuana.” The weight of that marijuana did not include

any packaging, but the weight of the additional plant material included the packaging. The

weight of the cocaine did not include any packaging.

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Investigator Gerrod Shirey of the PPD testified that he had been a narcotics

investigator since 2011, that he had specialized training in “different narcotics,” and that

he often used informants to purchase cocaine and marijuana in Giles County. He said that

an “eight ball” was “three point five grams (3.5) of whatever illegal narcotics that you are

purchasing.” In April 2019, an eight ball of cocaine sold for $140 to $160. Therefore, the

value of eight grams of cocaine would have been “[p]robably $250.” He said “mid-grade”

marijuana sold for $60 per gram.

Investigator Shirey testified that the average cocaine user would not consume more

than two grams of cocaine per day because cocaine was “a stimulant on the brain” and

“gives you a lot of energy and makes you go, you know, all day long.” Furthermore, a

person “could easily overdose and die” if the person used too much cocaine in one day.

The State asked if eight grams of cocaine was a “typical amount” for personal use, and

Investigator Shirey answered, “No, ma’am.” He said a person who possessed that amount

of cocaine either would sell the drug in grams or sell the drug as two eight balls. Eighty-

seven grams of marijuana also would not be for personal use. Investigator Shirey said that

based on the amounts of drugs and money in this case, he thought the Defendant was selling

drugs. At the conclusion of his testimony, the State rested its case.

The thirty-year-old Defendant testified that in April 2019, he was living in Pulaski,

was employed by a temporary agency, and was earning $13.75 per hour working at Nissan.

On the night of April 25, 2019, the Defendant worked at Nissan until 10:00 p.m. After

work, he drove to the Pulaski Recreation Center because he was going to be the “middle

man” for a marijuana transaction. The Defendant explained that a man was supposed to

meet him at the recreation center and bring him “[a] couple of bags of weed” and that a

second man was going to pick up the marijuana. The Defendant was “supposed to get a

cut” of the marijuana.

The Defendant testified that the first man arrived at the recreation center about 11:30

p.m. The man put the bag of marijuana on the Defendant’s back seat and told the Defendant

that “a dude is going to come and pick it up, just wait on him.” The Defendant did not

know how much marijuana was in the bag, and he did not give the man any money because

he thought the second man had already paid for the marijuana. The first man left, and the

Defendant fell asleep while he was waiting for the second man to arrive. The Defendant

acknowledged that he had prior convictions for simple possession of marijuana and that he

was on probation for simple possession at the time of trial. Defense counsel asked why the

Defendant had so much money in his possession that night, and the Defendant said he had

been saving his money and had cashed his paycheck so he could get his own place to live.

The Defendant did not know cocaine was in the bag. He said that he had been employed

his entire adult life and that he had never dealt with cocaine.

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On cross-examination, the Defendant testified that he slept in his car sometimes but

that he was not living in his car in April 2019. He identified a “pay stub” dated February

1, 2019, and acknowledged that it showed he earned $160.31 for the week ending January

27, 2019. He identified a second pay stub dated January 25, 2019, and acknowledged that

it showed he earned $424 for the week ending January 20, 2019. A third pay stub showed

that he earned $222 for the week ending December 28, 2018. The Defendant’s earnings

were always directly deposited into his savings account. He was in possession of $1,300

on the night of April 26, 2019, because he was “trying to get a place the next day” and had

taken the money out of his savings account. The Defendant said that he could not

remember the name of the man who put the marijuana into his car and that he had never

met the man prior to April 26. A man named “Justin” was supposed to pick up the

marijuana, but the Defendant did not know Justin’s last name or where Justin lived. The

Defendant wanted his “cut” of the marijuana so he could smoke it.

At the conclusion of the Defendant’s testimony, the jury convicted him as charged

in the indictment of possession of one-half gram or more of cocaine with intent to sell,

possession of not less than one-half ounce of marijuana with intent to sell, and possession

of drug paraphernalia. After a sentencing hearing, the trial court sentenced him to

concurrent sentences of twelve years, two years, and eleven months, twenty-nine days,

respectively.

ANALYSIS

I. Sufficiency of the Evidence

The Defendant claims that the evidence is insufficient to support the convictions

because the jury disregarded his testimony that he did not know the cocaine was in the bag,

that he was just the middleman for transferring the marijuana, that no money exchanged

hands, and that he was to receive a small amount of the marijuana for his personal use. He

also claims that the jury disregarded the discrepancies between the amounts of cocaine and

marijuana weighed by Lieutenant Young and Agent Hernandez. The State argues that the

evidence is sufficient. We agree with the State.

When the sufficiency of the evidence is challenged on appeal, the relevant question

of the reviewing court is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier of

fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

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

evidence and all reasonable inferences that may be drawn from it. See State v. Williams,

657 S.W.2d 405, 410 (Tenn. 1983). All questions involving the credibility of witnesses,

the weight and value to be given the evidence, and all factual issues are resolved by the

trier of fact. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “A jury conviction

removes the presumption of innocence with which a defendant is initially cloaked and

replaces it with one of guilt, so that on appeal a convicted defendant has the burden of

demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982).

The guilt of a defendant, including any fact required to be proven, may be predicated

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

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

App. 1999). The standard of review for the sufficiency of the evidence is the same whether

the conviction is based on direct or circumstantial evidence or a combination of the two.

See State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

It is an offense for a defendant knowingly to possess a controlled substance with

intent to sell the controlled substance. Tenn. Code Ann. § 39-17-417(a)(4). Possession of

cocaine with intent to sell when the amount of cocaine is one-half gram or more is a Class

B felony. Tenn. Code Ann. § 39-17-417(c)(1). Possession of marijuana with intent to sell

when the amount of marijuana is not less than one-half ounce nor more than ten pounds is

a Class E felony. Tenn. Code Ann. § 39-17-417(g)(1).

As noted by the State, “It may be inferred from the amount of a controlled substance

or substances possessed by an offender, along with other relevant facts surrounding the

arrest, that the controlled substance or substances were possessed with the purpose of

selling or otherwise dispensing.” Tenn. Code Ann. § 39-17-419. Our case law has

established “other relevant facts” that may give rise to an inference of intent to sell,

including the absence of drug paraphernalia, the presence of a large amount of cash, the

manner of packaging of the drugs, and the street value of the drugs. See State v. Belew,

348 S.W.3d 186, 191 (Tenn. Crim. App. 2005) (citing State v. Chearis, 995 S.W.2d 641,

645 (Tenn. Crim. App. 1999)); see also State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App.

1995) (concluding that the absence of drug paraphernalia and the manner of packaging of

drugs supported an inference of intent to sell); State v. Matthews, 805 S.W.2d 776, 782

(Tenn. Crim. App. 1990) (concluding that testimony concerning the amount and the street

value of the drugs was admissible to prove the defendant’s intent).

Taken in the light most favorable to the State, the evidence shows that on April 26,

2019, the Defendant had a bag of marijuana and cocaine on the back seat of his car. The

marijuana weighed a minimum of 87.56 grams, and the cocaine weighed 8.29 grams.

Although the Defendant claimed that he was just the middleman for a marijuana transaction

and that he did not know the cocaine was in the bag, he was in possession of more than

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$1,300 in various denominations of cash. The marijuana was packaged into smaller bags,

and Lieutenant Young did not find any drug paraphernalia to suggest the Defendant

possessed the marijuana or cocaine for personal use. To the contrary, Lieutenant Young

found a set of digital scales in the car, and marijuana residue was on the lid of the scales.

Lieutenant Young said digital scales were commonly used to weigh narcotics. Investigator

Shirey testified that in April 2019, eight grams of cocaine was worth about $250 and that

“mid-grade” marijuana was worth $60 per gram. Therefore, assuming arguendo that the

87.56 grams of marijuana was mid-grade marijuana, by our calculations, the value of that

marijuana alone would have been worth more than $5,000. The Defendant complains that

the jury should have accredited his testimony that he merely was transferring the marijuana

between two men, that he did not know the cocaine was present, and that he did not possess

the drugs for sale. However, determining the credibility of witnesses is within the purview

of the trier of fact. See State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim. App. 2000). In

this case, the jury chose to accredit the testimony of the State’s witnesses.

As to the Defendant’s claim that the jury disregarded the discrepancies in the

amounts of cocaine and marijuana, Lieutenant Young testified that the bags of marijuana

and cocaine weighed 305 grams and ten grams, respectively. Agent Hernandez testified

that the marijuana weighed 87.56 grams, that the additional plant material weighed 183.87

grams, and that the cocaine weighed 8.29 grams. However, she weighed the marijuana and

the cocaine without any packaging. Therefore, it is logical to this court that the weights

obtained by Agent Hernandez were lower than the weights obtained by Lieutenant Young.

In any event, the jury, as was its prerogative, obviously resolved any discrepancies in the

weights in favor of the State. Therefore, we conclude that the evidence is sufficient to

support the Defendant’s convictions.

II. Jury Room

The Defendant claims that a new trial is required due to the grand jury and the petit

jury being exposed to extraneous prejudicial information in the “Confederate jury room.”

The State argues that we should review this issue for plain error because the Defendant

failed to raise it before trial. The State further argues that because the Defendant failed to

present any proof that jurors were aware of the Confederate memorabilia pursuant to

Tennessee Rule of Evidence 606(b), he cannot meet the threshold of showing that they

were exposed to extraneous influence; therefore, no unequivocal rule of law was breached.

The State also argues that because proof of the Defendant’s guilt was overwhelming,

consideration of the error is not necessary to do substantial justice. We agree with the

State’s argument.

The Defendant, who is African American, filed a motion for new trial in which he

claimed that the jury’s deliberating in an “inherently prejudicial Confederate jury room”

violated his right to a fair trial, an impartial jury, due process, and equal protection of the

law under the United States Constitution, the Tennessee Constitution, and the Tennessee

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Rules of Evidence. He also claimed that the indictment was defective due the grand jury’s

being required to meet in the same jury room.

At the motion for new trial hearing, Natalie Oakley testified for the Defendant that

she was the Circuit Court Clerk for Giles County and that Giles County juries deliberated

“in our jury room,” also known as “the U.D.C. room.” She said that “U.D.C.” was the

acronym for United Daughters of the Confederacy and that “U.D.C. Room” was painted

on the door of the jury room. She identified a photograph of the door and acknowledged

that the jury for the Defendant’s trial deliberated in the room.

Ms. Oakley testified that the Giles County Grand Jury also deliberated in the room

“unless something else was going on at the courthouse and they had to meet at the

courthouse annex, which is the [SunTrust] Bank building. And they would meet in the

basement board room.” Defense counsel asked if Ms. Oakley had any reason to think the

grand jury that brought the Defendant’s charges did not deliberate in the U.D.C. Room,

and she said no but that “I would have to go back and look at my calendar to see if any

reason they were over at the annex.” Ms. Oakley then identified nine photographs taken

inside the jury room, and defense counsel asked her, “As far as you know, has the jury

room always looked like this?” Ms. Oakley responded, “To my knowledge, but . . . I don’t

make it a habit of going in there[.]”

Defense counsel introduced the ten photographs of the jury room into evidence. The

first photograph shows the door to the room. The glass panel in the door bears the U.D.C.

insignia, which consists of the first national flag used by the Confederate States of America.

See The Editors of Encyclopedia Britannica, “flag of the Confederate States of America,”

Encyclopedia Britannica, Jan. 7, 2021, https://www.britannica.com/topic/flag-of-the-

Confederate-States-of-America (last visited July 24, 2022) (showing flags). The letters

“UDC,” in an overlapping pattern, are beneath the flag, and the flag is encircled by a gold

wreath with a ribbon tied in a bow at the bottom of the wreath. The number “61” is on the

left side of the bow, and the number “65” on the right side of the bow.1 “U.D.C. Room” is

in gold paint beneath the insignia.

The second, third, and fourth photographs are general photographs of the room and

show the furniture in the room, which includes a long table, chairs around the table, and a

couch. Several items can be seen hanging on the walls. The fifth photograph is a closeup

of one of those items: a large, framed flag hanging on the wall opposite from the entry

door. The flag is the third national flag of the Confederacy, which was adopted by the

Confederate Congress in 1865. See id. The design for the Confederate battle flag, a blue

diagonal cross trimmed with white and bearing thirteen white stars on a red background,

1

The American Civil War was fought from 1861 to 1865. See Jennifer L. Weber and Warren W.

Hassler, “American Civil War,” Encyclopedia Britannica, April 20, 2022,

https://www.britannica.com/event/American-Civil-War (last visited July 25, 2022).

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appears in the upper left of the flag. See id. The sixth photograph shows a metal plaque

that is fastened to the bottom of the flag’s frame. The plaque reads, “CONFEDERATE

FLAG PROPERTY OF GILES COUNTY CHAPTER #257 UDC.”

The seventh photograph shows a framed portrait of Jefferson Davis.2 A metal

plaque on the bottom of the portrait reads, “PRESIDENT JEFFERSON DAVIS OWNED

BY GILES COUNTY CHAPTER #257, UDC.” The eighth photograph shows the same

portrait of Davis and another portrait on the adjacent wall. The ninth photograph shows a

metal plaque hanging from the bottom of the second portrait. The plaque reads,

“GENERAL JOHN C. BROWN OWNED BY GILES COUNTY CHAPTER #257,

UDC.”3

The tenth photograph shows a framed letter typed on United Daughters of the

Confederacy letterhead. The letter, which hangs to the right of the Jefferson Davis portrait,

is dated March 25, 2005, and is addressed to “Ms. Cathy Gordon Wood, President, Giles

County Chapter #257.” The letter reads:

Dear Ms. Wood:

Thank you for your letter informing me of the goals of your chapter. How

exciting that you wish to be more visible in Giles County! With the replacing

of the panel on the door, you will be continuing a tradition of the UDC,

namely, memorial.

It is my understanding from your letter that the room in the Giles County

Courthouse has been a UDC room since 1930’s. The accident concerning

the panel happened between the time the Red Cross used the room during

World War II, and present day. As there is no indication of the responsibility

of the damage, and your chapter is willing to accept the cost, I assume all

expenses will be borne by the chapter.

I therefore give Giles County Chapter #257, Pulaski, Tennessee full authority

to replace the clear glass door panel with a frosted glass panel, with the

following inscription - “UDC Room” with the UDC emblem located above

the lettering.

2

Davis was President of the Confederate States of America. See The Editors of Encyclopedia

Britannica, “Confederate States of America,” Encyclopedia Britannica, May 24, 2022,

https://www.britannica.com/topic/Confederate-States-of-America (last visited July 25, 2022).

3

John C. Brown was a Confederate general, was the governor of Tennessee from 1871 to 1875,

and was born in Giles County. See Anne-Leslie Owens, “John Calvin Brown,” Tennessee Encyclopedia,

Oct. 8, 2017, http://tennesseeencyclopedia.net/entries/john-calvin-brown/ (last visited July 25, 2022).

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As members of the United Daughters of the Confederacy, we must continue

to honor our Confederate Veterans, and share the history of the War Between

the States. I thank you and your chapter for your support to the General

Organization as we remember the objects of the UDC-Historical,

Educational, Benevolent, Memorial, and Patriotic.

The closing reads, “In Service to the UDC,” and the letter is signed by “Esther Owens Cope

President General.”

On cross-examination, Ms. Oakley testified that she had been working in the clerk’s

office for twenty-three years and that she was elected Giles County Circuit Court Clerk in

November 2017. She said that she had been in the U.D.C. Room “[c]ountless” times and

that no petit juror or grand juror had ever talked with her about the Confederate

memorabilia in the room. Every “term,” a computer selected 800 potential jurors at random

from the Tennessee Department of Safety database. Ms. Oakley said that the names were

selected from everyone with a driver’s license in Giles County and acknowledged that the

selection was “a general cross section of the community.”

On redirect-examination, Ms. Oakley identified the Property Committee Minutes

from the Giles County Commission’s meeting on September 11, 2020. Defense counsel

asked if Ms. Oakley was aware that the commission debated the items in the U.D.C. Room

during the meeting, and the State objected based on relevance and hearsay. Defense

counsel advised the trial court that during the meeting, “certain commissioners argued that

the items in that room . . . could influence a jury in a court case. That was the debate. They

voted on it, whether to leave it as it is or not.” Defense counsel moved to introduce the

minutes into evidence as an exhibit. The trial court found that the minutes had “some

relevance.” However, the trial court also found that the minutes were hearsay and not self-

authenticating and, therefore, that they could be marked for identification only.

Sam T. Collins testified for the State that he was the grand jury foreman in Giles

County and that he had been the foreman for eighteen years, including June 2019. He said

that he thought the grand jury met in the U.D.C. Room in June 2019 but that he did not

remember any grand jurors referring to a person’s race. Mr. Collins did not hear the grand

jurors refer to any of the Confederate memorabilia in the U.D.C. Room, and the grand

jurors did not ask him any questions about the memorabilia or refer to the United Daughters

of the Confederacy. He acknowledged that he had a reputation “for running a very tight

ship” and said that he had never overheard a grand jury discuss a person’s race or the

Confederate flag.

On cross-examination, Mr. Collins acknowledged that he was “a historian” and a

member of the historical society and said that he occasionally gave tours of the courthouse.

Defense counsel asked how the U.D.C. Room became the jury room, and he explained,

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That U.D.C. room is that because [in] 1907, this courthouse burned. And

then in 1909, it was moved back into. Between 1907 and 1909, there are

groups of people in Giles County that contributed money, contributed time,

did things to try to benefit the restructure of this courthouse. And the United

Daughters of the Confederacy outfitted that room with the table, the chairs,

and the things in that. And they were allowed to put their initials, U.D.C.,

on the door.

Mr. Collins said that the U.D.C. did not “own” the room but that removing the confederate

memorabilia from the room would require the permission of the Giles County Executive,

who was responsible for the courthouse.

Mr. Collins acknowledged that it was possible people in the jury room discussed the

memorabilia and that he did not hear them. However, he also acknowledged that he had

never been concerned that the Confederate memorabilia in the room influenced a jury.

Defense counsel asked if Mr. Collins considered the U.D.C. Room to be a “Confederate

monument,” and Mr. Collins answered,

No. I wouldn’t consider it a Confederate monument, no. I would consider

that it was done at that particular time in history, between 1907 and 1909, by

a group of people who wanted to help this courthouse be put back like it

should be and that they contributed to that effort, but I don’t think it’s a

Confederate monument, no.

Mr. Collins acknowledged that the Ku Klux Klan was founded in Giles County, across the

street from the courthouse. On redirect-examination, defense counsel asked if Mr. Collins

had ever been concerned that a grand jury had been “influenced in a way that would be

prejudicial to someone of a different race,” and he responded, “Never.”

At the conclusion of the hearing, the trial court asked defense counsel, “How have

you shown prejudice[] in this case, this trial, this sentencing hearing, this deliberation?”

Defense counsel answered, “Well, I don’t believe the law requires me to show that [the

jurors] changed their mind based on what they saw on the walls, as impossible as that may

be to prove.” The trial court stated that it disagreed with trial counsel. On June 15, 2021,

the trial court entered a written order denying the motion for new trial without making any

findings of fact or conclusions of law.

On appeal, the Defendant contends that a new trial is required because the

Confederate memorabilia exposed the jury to extraneous prejudicial information or

improper outside influence, which created a rebuttable presumption of prejudice, and

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because the State failed to rebut the presumption.4 He also contends that the jury’s being

required to deliberate in “an inherently prejudicial Confederate jury room” violates the 14th

Amendment’s “protection against state-sponsored racial discrimination” and the 6th

Amendment’s “right to a jury trial”; the United States and Tennessee Constitutions’ right

to trial by “an impartial jury”; and “the trial court’s duty of judicial impartiality.” Finally,

he contends that the indictment was defective because the grand jury also was required to

meet in the room.

Initially, we will address the State’s argument that we should review the

Defendant’s claims for plain error. Tennessee Rule of Criminal Procedure 12(b)(1)

provides that “any defense, objection, or request that the court can determine without a trial

of the general issue” may be raised before trial. However, defenses and objections based

on “a defect in the institution of the prosecution” or “a defect in the indictment” must be

raised before trial. Tenn. R. Crim. P. 12(b)(2)(A), (B). The federal counterpart to

Tennessee Rule of Evidence 12(b)(2) lists “an error in the grand-jury proceeding” as a

defect in the prosecution. Fed. R. Crim. P. 12(b)(3)(A)(v). Although the location of jury

deliberations and jury impartiality are not issues that must be raised before trial, our

supreme court has held that constitutional issues should have been raised at trial, even when

the issues were raised and denied in a motion for new trial. See State v. Vance, 596 S.W.3d

229, 254 (Tenn. 2020); see also State v. Adolphus L. Hollingsworth, No. E2015-01463-

CCA-R3-CD, 2017 WL 111331, at *24 (Tenn. Crim. App. Jan. 11, 2017) (addressing

impartial jury claim as plain error when the defendant raised it in his motion for new trial

but never brought it to the attention of the trial court).

Moreover, according to the evidence presented at the Defendant’s motion for new

trial hearing, the Confederate memorabilia had been in the jury room for years, if not

decades. The U.D.C. name and insignia were painted on the door to the room in 2005, and

Mr. Collins testified that he gave tours of the courthouse occasionally. The attorney who

represented the Defendant at trial did not testify at the hearing on the motion for new trial,

so there is nothing in the record to indicate that she was unaware of the “U.D.C. Room.”

Yet the Defendant did not raise any objection with regard to the jury room until he filed

his motion for new trial. “[The] failure to object within time to give the trial court an

4

In support of his argument, the Defendant asserts that we are required to follow State v. Tim

Gilbert, No. M2020-01241-CCA-R3-CD, 2021 WL 5755018, at *13-20 (Tenn. Crim. App. Dec. 3, 2021),

in which a panel of this court analyzed the same issue involving the same jury room and concluded that the

Confederate memorabilia in the U.D.C. Room constituted extraneous prejudicial information or improper

outside influence and that the State failed to rebut the presumption that the jury’s exposure to the extraneous

information was prejudicial. However, unpublished opinions constitute only persuasive authority and are

not binding precedent. See Tenn. S. Ct. R. 4(G)(1). In any event, at the time the parties filed their appellate

briefs and oral arguments were held in this case, Mr. Gilbert’s Rule 11 application from that decision was

pending to our supreme court. Subsequently, our supreme court denied Mr. Gilbert’s application for

permission to appeal and designated this court’s opinion “Not for Citation.” According to Rule 4(E)(1),

Rules of the Supreme Court of Tennessee, opinions designated not for citation have no precedential value.

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opportunity to prevent or nullify any harmful effect constitutes a waiver.” State v.

Thompson, 832 S.W.2d 577, 579 (Tenn. Crim. App. 1991) (citing Tenn. R. App. P. 36(a)).

Under these circumstances, we conclude that the Defendant must show that he is entitled

to plain error relief. See State v. Jason Paul Sherwood, No. M2005-01883-CCA-R3-CD,

2007 WL 189376, at *17 (Tenn. Crim. App. Jan. 26, 2007) (reviewing the court officer’s

and the defendant’s interactions with the jury in the jury room for plain error when no

objection was made at trial).

To be entitled to relief as plain error, a defendant has the burden to establish the

presence of the following five factors: (1) the record clearly establishes what occurred in

the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right

of the accused was adversely affected; (4) the issue was not waived for tactical reasons;

and (5) consideration of the error is necessary to do substantial justice. State v. Vance, 596

S.W.3d 229, 254 (Tenn. 2020) (citations omitted). “‘Moreover, the error must have been

of ‘sufficient magnitude that it probably changed the outcome of the trial.’” Id. (quoting

State v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008)).

Both the United States and Tennessee Constitutions guarantee a criminal defendant

the right to a trial by an impartial jury. See U.S. Const. amend. VI; Tenn. Const. art. I, §

9. “Jurors must render their verdict based only upon the evidence introduced at trial,

weighing the evidence in light of their own experience and knowledge. When a jury has

been subjected to either extraneous prejudicial information or an improper outside

influence, the validity of the verdict is questionable.” State v. Adams, 405 S.W.3d 641,

650 (Tenn. 2013) (internal citation omitted.) “Extraneous prejudicial information” is

defined as “information in the form of either fact or opinion that was not admitted into

evidence but nevertheless bears on a fact at issue in the case.” Id. An “improper outside

influence” is defined as “any unauthorized ‘private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending before the jury.’”

Adams, 405 S.W.3d at 650-51 (quoting Remmer v. United States, 347 U.S. 227, 229

(1954)). “External influences which could warrant a new trial if found to be prejudicial

include: (1) exposure to news items about the trial; (2) consideration of facts not admitted

in evidence, and (3) communications with non-jurors about the case.” Carruthers v. State,

145 S.W.3d 85, 92 (Tenn. Crim. App. 2003) (quoting Caldararo v. Vanderbilt University,

794 S.W.2d 738, 742 (Tenn. App. 1990)). Internal influences, which are not grounds to

overturn a verdict, include: “(1) discussions among jurors; (2) intimidation or harassment

of one juror by another; (3) a juror’s personal experiences not directly related to the

litigation, and (4) a juror’s subjective thoughts, fears, and emotions.” Id. (quoting

Caldararo, 794 S.W.2d at 742).

The party challenging the validity of the verdict must make an initial showing that

the jurors were exposed to extraneous prejudicial information or improper outside

influence. Adams, 405 S.W.3d at 651. As our supreme court has explained,

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[O]nce the challenging party has made the initial showing that the jury was

exposed to extraneous prejudicial information or an improper outside

influence, a rebuttable presumption of prejudice arises and the burden shifts

to the State to introduce admissible evidence to explain the conduct or

demonstrate that it was harmless.

Id. (citing Walsh v. State, 166 S.W.3d 641, 647 (Tenn. 2005)).

Tennessee Rule of Evidence 606(b) addresses juror testimony about extraneous

prejudicial information or improper outside influence. Specifically, the Rule provides,

Upon an inquiry into the validity of a verdict or indictment, a juror may not

testify as to any matter or statement occurring during the course of the jury’s

deliberations or to the effect of anything upon any juror’s mind or emotions

as influencing that juror to assent to or dissent from the verdict or indictment

or concerning the juror’s mental processes, except that a juror may testify on

the question of whether extraneous prejudicial information was improperly

brought to the jury’s attention, whether any outside influence was improperly

brought to bear upon any juror, or whether the jurors agreed in advance to be

bound by a quotient or gambling verdict without further discussion; nor may

a juror’s affidavit or evidence of any statement by the juror concerning a

matter about which the juror would be precluded from testifying be received

for these purposes.

Tenn. R. Evid. 606(b). Our supreme court has interpreted Tennessee Rule of Evidence

606(b) as allowing juror testimony to establish the fact of extraneous information or

improper influence on the juror but not allowing juror testimony regarding the effect of

such information or influence on the juror’s deliberative processes. Walsh, 166 S.W.3d at

649.

David Keen v. State, No. W2004-02159-CCA-R3-PD, 2006 WL 1540258 (Tenn.

Crim. App. 2006), in an instructive example of this court’s analysis of extraneous

prejudicial information or improper outside influence. In that case, this court considered

whether the petitioner, sentenced to death, was entitled to post-conviction relief “when a

juror read verses from the Bible in response to another juror’s statement regarding the

inability to impose a sentence of death.” David Keen v. State, 2006 WL 1540258, at *29.

At the post-conviction evidentiary hearing, three jurors testified about what occurred in the

jury room during deliberations. Id. at *27. According to their testimony, at least one juror

read verses from a personal Bible and another juror recited a prayer; however, all three

jurors testified that they imposed the death penalty based on the law and that the Bible

passages did not influence their decisions. Id.

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First, this court considered whether the jurors’ testimony was admissible under

Tennessee Rule of Evidence 606(b) and found that the only juror testimony that was

admissible was the testimony about the verses being read aloud, the content of the verses,

and the prayer being recited. Id. at *30. The jurors’ testimony about the effect of the Bible

and prayer on their minds or the minds of any other jurors was inadmissible. Id.

This court then addressed whether the Bible verses at issue were prejudicial. In

doing so, this court noted that it could “only consider the ‘four corners’ of the purported

extraneous information without any reference to why it was read, or the interpretation, if

any, placed on it by either the reader or any other of the jurors” and that “the extraneous

information must be looked at objectively rather than subjectively.” Id. This court then

concluded as follows:

We agree with the lower court that Romans 13:1-4 is not extraneous

prejudicial information. This information (the Biblical passages) does not

pertain to the petitioner, the victim, or to any facts of the case. Neither does

the information pertain to the Rules of Procedure nor the Rules of Evidence

which apply to any criminal trial.

Viewing the extraneous information objectively, we cannot conclude that the

Biblical verses read nor the prayer spoken [out loud] were inherently and

substantially prejudicial. The general testimony regarding the readings from

Corinthians and Romans as well as testimony evidencing a prayer fail to

establish that any specific extraneous prejudicial information was given to

the jury. It is generally understood that jurors will inherently consider their

own religious, moral and philosophical beliefs during penalty phase

deliberations. In this regard, no one, including the courts of this state, can

expect jurors to live in a vacuum, immune from any contact with extra-

judicial resources, including the Bible. Thus, we are unable to conclude that

a jury’s exposure to a Biblical passage during deliberations is per se

prejudicial. Additionally, while the petitioner argues that the passages read

from Romans 13 are “pro-capital punishment,” this Court is reluctant to

make such an interpretation nor can this Court, under an objective standard,

conclude that the jurors understood the passage as God’s instruction to

impose a sentence of death.

A finding of reversible prejudicial error cannot be based on a mere

possibility that a juror was improperly influenced. The likelihood that the

juror was influenced must be substantial. The jury was instructed as to the

applicable law. We presume the jury follows the law as provided by the

court. The facts of this horrific murder of this eight-year-old victim are

heinous and include the confession of the petitioner. Accordingly, we cannot

conclude that the typical juror in this case would have not imposed a sentence

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of death absent the reading of the Biblical passages and/or the prayer. The

petitioner is not entitled to relief on this issue.

Id. at *31-32 (internal citations omitted).

Turning to the instant case, the memorabilia in the jury room did not pertain to the

Defendant, to any fact of the case, or to the procedural or evidentiary rules that apply to a

criminal trial. Ms. Oakley, who had been the Circuit Court Clerk for Giles County since

November 2017 and had worked in the clerk’s office for twenty-three years, testified for

the Defendant that no grand juror or petit juror had ever talked with her about the

memorabilia. The Defendant did not call any jurors to testify that even a single juror

closely observed the items at issue, read any plaques attached to the items, read the letter

on the wall, or recognized the items as symbols of the Confederacy. In fact, no juror

testified as to even noticing or being aware that the memorabilia was in the room.

Likewise, no jurors testified that any juror mentioned the memorabilia during deliberations.

As stated in David Keen, a finding of reversible prejudicial error cannot be based on the

possibility that a jury was improperly influenced. Although it would have been

impermissible for any juror to testify about the effect the memorabilia had on deliberations

or on any juror’s decision-making process, jurors could have testified that they were aware

of the items and that they recognized the items as symbols of the Confederacy. While we

certainly do not condone the presence of the memorabilia in the jury room, we conclude

that the Defendant failed to show that any specific extraneous prejudicial information was

improperly brought to the jury’s attention or improperly brought to bear upon any juror (or

grand juror). Therefore, no unequivocal rule of law was breached.

Additionally, the Defendant admitted to possessing the drugs. Thus, the only issue

before the jury was whether he possessed them for sale or personal use. As explained in

the previous section, the evidence in this case was overwhelming that the Defendant

possessed the drugs for sale. Accordingly, we also conclude that consideration of the error

is not necessary to do substantial justice.

As to the memorabilia being inherently prejudicial, we question whether the average

citizen would recognize the portraits of Jefferson Davis or John C. Brown, the insignia for

the United Daughters of the Confederacy, or the third national flag of the Confederate

States of America. We acknowledge that the Confederate battle flag has become a

controversial symbol in this country. See United States v. Blanding, 250 F.3d 858, 861

(4th Cir. 2001) (“It is the sincerely held view of many Americans, of all races, that the

confederate flag is a symbol of racial separation and oppression.”); West v. Derby Unified

School Dist. No. 260, 23 F. Supp. 2d 1223, 1233 (D. Kan. 1998) (“To many . . . displaying

this flag today represents an expression of continuing contempt for the rights of African-

Americans to participate fully and equally in American society.”); see also D.B. ex rel.

Brogdon v. Lafon, 217 F. App’x 518, 523-24 (6th Cir. 2007) (quoting federal court opinions

- 16 -

regarding the Confederate battle flag’s “inherent racial divisiveness”). However, the flag

in this case is not the Confederate battle flag.

Finally, the Defendant claims that the memorabilia violated the trial court’s duty of

judicial impartiality. As noted by the State, though, issues raised for the first time on appeal

are waived. See Tenn. R. App. P. 36(a); State v. Johnson, 970 S.W.2d 500 (Tenn. Crim.

App. 1996) (“Issues raised for the first time on appeal are considered waived.”). In sum,

we conclude that the Defendant is not entitled to plain error relief on this issue.

III. Motion to Withdraw

Next, the Defendant claims that the trial court erred by denying defense counsel’s

motion to withdraw from representation. The State argues that the Defendant has waived

this issue because the record is incomplete for our review. We agree with the State.

Two days before trial, defense counsel filed a motion to be relieved as counsel. In

the motion, defense counsel asserted as follows: On November 25, 2019, defense counsel

met with the Defendant, and they discussed his case. During the meeting, defense counsel

telephoned the “arresting officer” to ask him a question. Defense counsel made the call in

the Defendant’s presence, and the Defendant knew what defense counsel said to the officer

and what the officer said to defense counsel. Defense counsel was supposed to meet with

the Defendant in defense counsel’s office on February 7, 2020, to go over his “entire case”

before trial; however, the Defendant did not show up for the meeting. Defense counsel

began trying to locate the Defendant, and the Defendant eventually telephoned defense

counsel. Defense counsel asked why the Defendant missed his appointment, and he told

her that “due to counsel knowing the police and being able to call and ask them questions

that she would not ‘fight’ for him and was on the police departments side.” Defense

counsel then stated in the motion, “Based on defendant’s accusations that counsel would

throw the case, Counsel states that such a gap has been created between the Defendant and

counsel that Counsel cannot represent him and asks this Honorable Court to allow her to

be relieved as counsel.”

After the jury was selected on the first day of trial, defense counsel reminded the

trial court about her motion and stated,

We came in to court yesterday at that motion. Your Honor denied the

motion and told Mr. Martin to go sit down and talk with me.

We did go sit down and talk. And after finally getting him calmed

down and getting him to listen where I explained to him where we were, we

were able [to] discuss the case.

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So I think we are in a fairly decent position at this point, Judge, but,

yes, it did take quite a bit of talking and things yesterday and stuff.

The trial court addressed the Defendant and said, “I just want to encourage you, Mr. Martin,

to work with [defense counsel]. She is one of our experienced, more experienced and very

good defense lawyers. She will fight for you. She is not on the police side. So I just

wanted to say that to you.”

The record reflects that trial counsel was appointed to represent the Defendant.

Tennessee Code Annotated section 40-14-205(a) provides, “The court may, upon good

cause shown, permit an attorney appointed under this part to withdraw as counsel of record

for the accused.” The decision of whether to substitute counsel is within the sound

discretion of the trial court. State v. Gilmore, 823 S.W.2d 566, 569 (Tenn. Crim. App.

1991).

The trial transcript reflects that the trial court held a hearing on defense counsel’s

motion to withdraw and that the trial court denied the motion. However, the Defendant

failed to include a transcript of the hearing in the appellate record. We note that the

Defendant filed a reply brief but that he did not address the State’s waiver argument and

that he did not file a motion to supplement the record with the missing transcript. See Tenn.

R. App. P. 24(g). Without the transcript, we are unable to review what occurred during the

hearing and, therefore, are unable to determine whether the trial court properly denied

defense counsel’s motion to withdraw. See Tenn. R. App. P. 24(b). In any event, the next

day, defense counsel advised the trial court that she and the Defendant “were able [to]

discuss the case” and that they were “in a fairly decent position at this point.” The

Defendant did not say anything to contradict defense counsel and never requested that she

be removed from his case. Therefore, we conclude that he is not entitled to relief. See

Tenn. R. App. P. 36(a).

IV. Defendant’s Letter

The Defendant contends that the trial court erred by excluding a letter he wrote from

evidence. The State argues that the Defendant has waived this issue. We conclude that the

Defendant is not entitled to relief.

After Lieutenant Young’s direct testimony, the trial court announced a lunch break.

When the parties returned to the courtroom, the prosecutor advised the trial court that while

the Defendant’s case was pending before the grand jury, she received a letter from the

Defendant that was postmarked June 4, 2019. The prosecutor further advised the trial court

that she gave the letter to the Defendant’s first appointed attorney and discussed the letter

with him; however, that attorney subsequently was replaced by defense counsel. The

prosecutor stated that during the lunch break, she learned that the letter was not in the

discovery materials and that defense counsel never received the letter. Defense counsel

- 18 -

confirmed to the trial court that the letter was not in discovery and that she found out about

the letter during the lunch break. Defense counsel stated, “I would be objecting to any use

of that letter.” The prosecutor responded that she was not going to use the letter in the

State’s case-in-chief and that she “only had it in case the defendant testified in some way.”

The trial court asked about the contents of the letter, and the prosecutor answered,

“[S]omething to the [e]ffect of it was for personal use.” The trial court ruled, “Well, we’re

not going to use it, period.”

At the Defendant’s motion for new trial hearing, Hershell Koger testified for the

State that he initially was appointed to represent the Defendant and that the assistant district

attorney general sent him a copy of the letter. Mr. Koger said that he reviewed the letter

and acknowledged that the letter “could be deemed exculpatory.” He said that he did not

review the letter with the Defendant or send the letter to the Defendant because “[m]y

thought would be that he would know what he sent to the DA.” Mr. Koger received the

letter prior to receiving the discovery materials, and he put the letter in the Defendant’s

file. The letter remained in the file in Mr. Koger’s office; therefore, the letter did not get

turned over to defense counsel with the discovery materials.

The State introduced the two-page, single-spaced letter into evidence. In the letter,

the Defendant wrote, in pertinent part, “The night of my situation me and a few friends of

mine all purchased the cocaine and marijuana to split in half for usage not to sale. I was

not going to sell any of it.”

Tennessee Rule of Criminal Procedure 16(a)(1)(C) provides that upon a defendant’s

request, the State must allow the defendant to inspect and copy certain evidence which is

material to the preparation of the defendant’s defense or that the State intends to use as

evidence in its case-in-chief. If the State fails to comply with this rule, the trial court has

the discretion to fashion an appropriate remedy, including granting a continuance or

prohibiting the introduction of the evidence. Tenn. R. Crim. P. 16(d)(2)(C). Furthermore,

in Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that

the State has a constitutional duty to furnish the defendant with exculpatory evidence

pertaining to the defendant’s guilt or innocence or to the potential punishment faced by the

defendant. In order to establish a Brady violation, a defendant must show that: (1) he or

she requested the information (unless the evidence is obviously exculpatory, in which case

the State is obligated to release such evidence regardless of whether or not it was

requested); (2) the State suppressed the information; (3) the information was favorable to

the defendant; and (4) the information was material. State v. Edgin, 902 S.W.2d 387, 390

(Tenn. 1995).

On appeal, the Defendant contends that the trial court erred by ruling that the letter

was inadmissible because the letter was exculpatory and because the State failed to turn

over the letter during discovery, which hindered defense counsel’s trial preparation.

However, the Defendant knew he sent the letter to the assistant district attorney general,

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and he knew the contents of the letter. Moreover, the letter contradicted his sworn

testimony that he was the middleman for the drug transaction and that he did not know the

cocaine was in the bag with the marijuana. Regardless, it was the Defendant who sought

to exclude the letter, and the trial court granted his request, which was an appropriate

remedy pursuant to Tennessee Rule of Criminal Procedure 16. Therefore, we conclude

that he is not entitled to relief. See Tenn. R. App. P. 36(a).

V. Investigator Shirey’s Testimony

The Defendant claims that the trial court erred by allowing Investigator Shirey to

testify that the average cocaine user would not possess eight grams of cocaine for personal

use. He contends that the testimony misled and confused the jury because it ignored the

possibility that a user could possess eight grams of cocaine to be used over the course of

multiple days. The State argues that the trial court did not err. We agree with the State.

During Investigator Shirey’s testimony, the State asked if he had experience with

users of marijuana and cocaine, and he answered, “Yes, ma’am.” The State then asked,

“What’s a low to high range for a user of cocaine per day?” Defense counsel objected on

the basis of relevance, and the trial court overruled the objection. Investigator Shirey

answered, “I work [with] a lot of informants, and the informants being in this world of

either using narcotics or purchasing, so I get to talk to them on a daily basis. So your

average person that uses cocaine will not basically use more than two grams a day[.]” The

State later asked him, “Is eight grams of cocaine, is that a typical amount that you have

seen for personal use?” Investigator Shirey said no and that a person either would sell eight

grams of cocaine by the gram or as two eight balls.

Evidence is relevant and generally admissible when it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401, 402.

Even relevant evidence may be excluded, though, “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. Questions regarding the admissibility and

relevancy of evidence lie within the discretion of the trial court, and the appellate courts

will not “interfere with the exercise of that discretion unless a clear abuse appears on the

face of the record.” State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v.

Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)).

In this case, the State charged the Defendant with possession of cocaine with intent

to sell. Therefore, evidence that the amount of cocaine in the car was consistent with the

amount a person would have for sale and not for personal use was highly relevant to the

State’s case. Accordingly, we do not think the probative value of Investigator Shirey’s

testimony was substantially outweighed by the danger of unfair prejudice, confusion of the

- 20 -

issues, or misleading the jury. We note that defense counsel did not cross-examine

Investigator Shirey but that defense counsel could have asked him if it was possible the

Defendant possessed eight grams of cocaine for multiple days of personal use. See Tenn.

R. App. P. 36(a). Moreover, Lieutenant Young testified, without objection, that the amount

of cocaine found in the Defendant’s car was more than an average person would possess

for personal use. See Tenn. R. App. P. 36(b). Therefore, we conclude that the Defendant

is not entitled to relief on this issue.

VI. Alternative Sentencing

The Defendant claims that the trial court erred by denying alternative sentencing.

The State argues that the trial court properly ordered the Defendant to serve his effective

twelve-year sentence in confinement. We agree with the State.

At the Defendant’s sentencing hearing, Markeyta Bledsoe of PSI Probation testified

that the Defendant was placed on probation on May 13, 2019, for simple possession of

marijuana and resisting arrest and that she began supervising him in September 2019. In

February 2020, the Defendant passed a drug screen. However, in April 2020, Ms. Bledsoe

filed a probation violation report due to his failure to make payments on his court costs.

The Defendant last reported to Ms. Bledsoe on May 18, 2020. Ms. Bledsoe tried to contact

him but did not see him again. Therefore, she amended her initial probation violation report

to include his failure to report.

On cross-examination, Ms. Bledsoe testified that the Defendant was supposed to

report to her in person on June 10, 2020. He did not show up for the meeting but telephoned

her. The Defendant was supposed to meet with Ms. Bledsoe again in person on June 29,

2020, but she did not hear from him. On redirect-examination, Ms. Bledsoe testified that

she “tried to accommodate” the Defendant because he said he was employed.

Bethany Sisseck of the Board of Probation and Parole testified that she prepared the

Defendant’s presentence report. The Defendant gave a statement for the report in which

he claimed that the cocaine in his car did not belong to him and that he had the marijuana

for personal use. Ms. Sisseck investigated the Defendant’s prior criminal history and

obtained copies of his certified judgments of conviction. The Defendant had fifteen prior

misdemeanor convictions, including convictions of criminal trespass; possession of drug

paraphernalia; driving on a revoked license, fourth offense; resisting arrest; failure to

appear; driving on a suspended license; underage drinking; and four convictions of simple

possession of marijuana. The Defendant also had numerous probation violations. He told

Ms. Sisseck that he did not graduate from high school but that he was in a GED program

at Tennessee Tech. Ms. Sisseck verified that the Defendant was enrolled in the program

but learned that he was not attending the classes. The Defendant told Ms. Sisseck that he

was working at Nissan through a temporary agency and that he was working at Tenneplas.

- 21 -

Ms. Sisseck contacted the Defendant’s employers and was told that he no longer worked

for them.

The State introduced the Defendant’s presentence report into evidence. In the

report, the Defendant described his physical health as “good” and his mental health as

“excellent.” He denied having any physical or mental health conditions. He said that he

began consuming beer when he was twenty-one years old but that he was “a social drinker”

and did not consume alcohol often. He also said that he began using marijuana in 2010

and that he smoked about three “joints” per day. The Defendant stated that he was still

using marijuana and that he could not pass a drug screen.

The Defendant’s Strong-R assessment was attached to his presentence report and

classified his overall risk to reoffend as low. The assessment concluded that he had high

needs relevant to “Attitudes/Behaviors” and “Residential”; moderate needs relevant to

“Friends,” “Family,” and “Education”; and low needs relevant to “Aggression,” “Mental

Health,” “Alcohol/Drug Use,” and “Employment.”

The Defendant gave an allocution in which he said he was a media and promotion

manager for a music company and that he finally had a career he loved and enjoyed. He

stated that he also worked for a moving company and that he was living with a roommate

in an apartment in Huntsville, Alabama. The Defendant told the trial court that he came

from a “broken” home, that his parents used drugs, and that he ended up in state custody

until he was seventeen years old. The Defendant stated that he was not a drug dealer and

that he had smoked marijuana his “whole” life because he did not have any parenting or

structure. The Defendant said that he never sold drugs, that “trying to middle-man for a

friend” was the worst mistake he ever made, and that he did not know cocaine was in the

bag of marijuana. The Defendant stated that he had a son, that his family and career were

“worth everything” to him, and that he knew he could be a great father. The Defendant

promised to follow the rules of probation and said he would “remain a productive citizen

of society and a father who will always provide for his family.”

The trial court noted that the Defendant was about to turn thirty-one years old and

that he had been in the criminal justice system “for many years, probably 12 or so,

beginning at age 19.” The trial court stated that the Defendant “downplays pretty much

everything” and found his claims of being the middleman for the drugs and not knowing

the cocaine was in his vehicle not credible. The trial court also found the Defendant’s

claims of taking GED classes and having a strong work history not credible. The trial court

stated that the Defendant “has had a lot of chances by a very soft criminal justice system”

and that rehabilitation was unnecessary due to his “chosen lifestyle of smoking marijuana.”

The trial court found that the following enhancement factors applied to the

Defendant’s felony convictions: (1) the Defendant has a previous history of criminal

convictions or behavior in addition to those necessary to establish the appropriate range;

- 22 -

(8) the Defendant, before trial or sentencing, failed to comply with the conditions of a

sentence involving release into the community; and (13) the Defendant was on bond and

on probation at the time the felonies were committed. See Tenn. Code Ann. § 40-35-

114(1), (8), (13)(A) & (C). The trial court gave “pretty substantial weight” to enhancement

factor (1) and “great weight” to enhancement factors (8) and (13). The trial court found no

mitigating factors applicable and sentenced the Defendant as a Range I, standard offender

to twelve years for possession of one-half gram or more of cocaine with intent to sell, a

Class B felony; two years for possession of not less than one-half ounce of marijuana with

intent to sell, a Class E felony; and eleven months, twenty-nine days for possession of drug

paraphernalia, a Class A misdemeanor. The trial court ordered that he serve the sentences

concurrently with each other but consecutive to the prior sentences for which he was on

bond and probation. See Tenn. R. Crim. P. 32(c)(3)(A), (C).

As to alternative sentencing, the trial court found that the Defendant had a history

of violating probation and that he would not abide by the terms of probation in this case.

The trial court concluded that confinement was necessary to avoid depreciating the

seriousness of the offenses and that confinement was particularly suited to provide an

effective deterrence to others likely to commit similar offenses. See Tenn. Code Ann. §

40-35-103(1)(B).

This court reviews the length, range, and manner of service of a sentence imposed

by the trial court under an abuse of discretion standard with a presumption of

reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); State v. Caudle, 388

S.W.3d 273, 79 (Tenn. 2012) (applying the standard to alternative sentencing). In

determining a defendant’s sentence, including the manner of service, the trial court

considers the following factors: (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 enhancement and

mitigating factors; (6) any statistical information provided by the Administrative Office of

the Courts as to sentencing practices for similar offenses in Tennessee; (7) any statement

by the Defendant in his own behalf; and (8) the result of the validated risk and needs

assessment conducted by the department and contained in the presentence report. See

Tenn. Code Ann. § 40-35-210(b); see also Bise, 380 S.W.3d at 697-98. The burden is on

the Defendant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-

35-401, Sent’g Comm’n Cmts.

Regarding alternative sentencing, a defendant is eligible for alternative sentencing

if the sentence actually imposed is ten years or less. See Tenn. Code Ann. § 40-35-303(a).

Moreover, a defendant who is an especially mitigated or standard offender convicted of a

Class C, D, or E felony should be considered a favorable candidate for alternative

sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6)(A). The

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following sentencing considerations, set forth in Tennessee Code Annotated section 40-

35-103(1), may constitute “evidence to the contrary”:

(A) Confinement is necessary to protect society by restraining a

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness

of the offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or

recently been applied unsuccessfully to the defendant.

Additionally, a court should consider a defendant’s potential or lack of potential for

rehabilitation when determining if an alternative sentence would be appropriate. See Tenn.

Code Ann. § 40-35-103(5). A defendant with a long history of criminal conduct and

“evincing failure of past efforts at rehabilitation” is presumed unsuitable for alternative

sentencing. Tenn. Code Ann. § 40-35-102(5).

Turning to this case, we note that the Defendant claims his twelve-year sentence for

possession of cocaine is “unreasonable” but that he does not contest the trial court’s

application of enhancement factors (1), (8), or (13) or make any argument as to why his

sentence is excessive. Regarding alternative sentencing, he asserts, without any

explanation, that confinement is not necessary to avoid depreciating the seriousness of the

offenses and that confinement is not particularly suited to provide an effective deterrent to

others likely to commit similar offenses. He also asserts that the record supports finding

that he is a prime candidate for rehabilitation, noting his candor about his marijuana use

and inability to pass a drug screen, and supports finding that he has a low risk of

reoffending.

We conclude that the record supports the trial court’s denial of full probation or

other form of alternative sentencing. The Defendant is not eligible for probation for his

conviction of possession of one-half gram or more of cocaine with intent to sell because

his sentence is twelve years. He also is not considered to be a favorable candidate for

alternative sentencing because that conviction is a Class B felony. In any event, the trial

court considered the relevant sentencing principles, applied them to the facts of this case,

and denied alternative sentencing based on Tennessee Code Annotated section 40-35-

103(1)(B). Additionally, the trial court determined that the Defendant should serve his

sentences in confinement because he has repeatedly violated probation and because his

potential for rehabilitation is poor due to his continued use of marijuana. We agree with

the trial court. Therefore, we affirm the trial court’s denial of alternative sentencing.

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VII. Cumulative Error

Finally, the Defendant argues that the cumulative effect of the errors in this case

warrants reversal of his convictions. However, because we have concluded that the trial

court did not commit any errors, the Defendant is not entitled to relief under the cumulative

error doctrine.

CONCLUSION

Upon our review, we affirm the judgments of the trial court.

_________________________________

JOHN W. CAMPBELL, SR., JUDGE

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