State Of Tenn. v. Majors

• Decision Date: 03 September 2010
• Docket Number: No. M2007-01911-SC-R11-CD.,M2007-01911-SC-R11-CD.
• Citation: 318 S.W.3d 850
• Parties: STATE of Tennesseev.Curtis Lee MAJORS.
• Court: Tennessee Supreme Court

318 S.W.3d 850

STATE of Tennesseev.Curtis Lee MAJORS.

No. M2007-01911-SC-R11-CD.

Supreme Court of Tennessee at Nashville.

June 2, 2010 Session at Cookeville.¹

Sept. 3, 2010.

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J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Curtis Lee Majors.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Robert E. McGuire, Assistant Attorney General, for the appellee, State of Tennessee.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JANICE M. HOLDER, C.J., and GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

CORNELIA A. CLARK, J.

We accepted this case to determine whether, under Tennessee Code Annotated section 39-16-503(a)(1), the proof required to convict the defendant of tampering with evidence is sufficient where the “thing” destroyed during the course of an investigation is not specifically identified. On the facts of this case, we hold that the evidence is sufficient. The judgment of the trial court is affirmed.

Facts

Curtis Majors (“Defendant”) was originally indicted on February 7, 2006. The grand jury issued a superseding indictment on November 16, 2006, charging Defendant with one count of possession with intent to sell or deliver less than 0.5 grams of a substance containing cocaine within one thousand feet of a school zone ² and one count of tampering with evidence. Defendant pled not guilty to both counts.

Prior to trial, Defendant moved to dismiss the indictment for tampering with evidence, arguing that, in its failure to specify the evidence with which Defendant had tampered, the superseding indictment was too vague to satisfy the requirements of federal constitutional and Tennessee statutory law. After hearing oral argument on April 3, 2007, the trial court denied the motion. ³

The following facts were adduced at trial. At approximately 9:00 P.M. on October 12, 2005, seven officers of a Metropolitan Nashville Police Department crime suppression unit executed a search warrant for an apartment located at 621 Charles E. Davis Boulevard. Officer William Traughber, the affiant for the search warrant, led the unit members to the apartment door. As the officers approached the door, a male opened the door and was apprehended inside the apartment by Officer Traughber. The officers all yelled “search warrant” and “police” as they entered the apartment. Each officer wore a raid vest bearing the department logo, a badge, and the word “police” in large lettering.

Officer Traughber testified that, right inside the door, there was a flight of steps leading up into the kitchen. When Officer Traughber entered the apartment, he could see Defendant seated at the kitchen table.⁴ Officer Traughber testified that Defendant “absolutely” saw the members of the crime suppression unit and heard them yelling “police.” Defendant then “t[ook] off running” from the kitchen table and disappeared from view. Officer Traughber saw Officers Ron Black and Tim Szymanski pursue Defendant as he left the kitchen. Officer Traughber testified that he then heard the “instantaneous” sound of a toilet flushing.

Officer Black testified that he could not see Defendant when he first entered the apartment but went upstairs because he heard a “commotion” in that area. Officer Black encountered Defendant coming out of the bathroom and took Defendant into custody. The toilet had just been flushed, water was still spraying in the bowl, but Defendant was completely dressed. Officer Black found no one else around Defendant when he took Defendant into custody just outside the bathroom.

Officer Traughber estimated that the bathroom was located about fifteen to twenty feet from the top of the steps. By the time that Officer Traughber climbed the steps, Defendant had been apprehended at the bathroom door. The commode's water tank was still filling up, and Defendant was wearing all of his clothes. Officer Traughber observed water splattered on the toilet seat.

After apprehending Defendant, the man who opened the door, and two other individuals in the apartment, the officers searched the premises. Officers Traughber and Black both testified that no drug residue or paraphernalia were observed in or around the toilet. Furthermore, the officers did not attempt to see if any drug-related evidence had been lodged in the toilet. Nor did they locate any drug paraphernalia or weapons on Defendant's person.

At the kitchen table, however, Officer Traughber found a small plate with a white powdery substance on it and a rolled-up dollar bill next to it. The powder field-tested positive for cocaine. This powder was collected and sent to the Tennessee Bureau of Investigation for further testing. At trial, Agent John Scott, a TBI forensic scientist, testified that he tested the powder and determined that it consisted of 0.04 grams of cocaine. The officers also recovered digital scales from a kitchen drawer, along with crack pipes and Chore Boy (a copper scouring pad frequently used as a filter for smoking crack cocaine) on the persons of other individuals arrested inside the apartment.

Defendant was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant then agreed to speak with Officer Traughber. Defendant admitted that the cocaine on the kitchen table belonged to him and that he snorted cocaine. When Officer Traughber asked Defendant what he flushed down the toilet, Defendant did not answer the question directly but repeatedly stated, “I snort.”

Lieutenant William MacKall testified as an expert in narcotics investigations. Based on his experience executing more than two thousand search warrants, Lieutenant MacKall testified that, when police enter a residence, the subjects of the search warrants often move around attempting to destroy evidence. Specifically, he testified that “people typically run to the bathroom and throw the product in the toilet and flush it.” He testified that powder cocaine dissolves in water such that he has only been able to recover powder cocaine left on the rim of the toilet seat. Furthermore, if evidence is actually flushed down the toilet (as opposed to getting clogged in the drain or not going under in the first place), Lieutenant MacKall testified that he has never been able to recover that evidence, even by removing the toilet from the floor.

At the conclusion of the proof, the trial court instructed the jury. Concerning the second count for tampering with evidence, the trial court orally gave the following instruction:

For you to find the defendant guilty of this offense the State must have proven beyond a reasonable doubt the existence of the following essential elements: (1) that the defendant knew an investigation or official proceeding was pending or in progress and (2) that the defendant altered, destroyed, or concealed any record with intent to impair its viredity (phonetic),⁵ legibility, or availability as evidence in the investigation or official proceeding. And it also needs to be record or any thing. It should be thing. And I think it's also any document. I am going to change this.

The record does not contain the written charge that the trial court actually submitted to the jury.

The jury ultimately convicted Defendant of simple possession of cocaine, a Class A misdemeanor, and tampering with evidence, a Class C felony. Following the convictions, Defendant filed a motion for judgment of acquittal see Tenn. R.Crim. P. 29(c), and two motions for new trial see Tenn. R.Crim. P. 33.⁶ Among other issues, Defendant's motions argued that the evidence supporting the tampering conviction was insufficient to establish the identity of the “thing” that Defendant allegedly destroyed; the trial court should have granted the prior motion to dismiss the tampering count from the indictment; and the jury instruction for tampering failed to specify the “thing” that Defendant allegedly destroyed. The trial court denied all of these motions. The trial court then determined that Defendant was a Range III, persistent offender and sentenced him to fifteen years for tampering with evidence and eleven months, twenty-nine days for simple possession, to be served concurrently.

Defendant appealed only his conviction and sentence for tampering with evidence, raising three issues to the Court of Criminal Appeals. First, Defendant challenged the sufficiency of the evidence to establish either his knowledge of an investigation pending or in progress or the identity of the “thing” with which Defendant tampered.⁷ Second, Defendant challenged the jury instruction for failing to name the “thing” that was destroyed. Finally, Defendant challenged his sentence because the trial court purportedly did not give proper consideration to a mitigating factor. A split panel of the Court of Criminal Appeals affirmed Defendant's conviction, with one judge dissenting on the sufficiency of the evidence. See State v. Majors, No. M2007-01911-CCA-R3-CD, 2009 WL 1422951 (Tenn.Crim.App. May 21, 2009).

This appeal followed. In this Court Defendant raises the issues of (1) sufficiency of the evidence, (2) error in the jury instructions, and (3) failure to grant the motion to dismiss the indictment, all related to the State's inability to identify the “thing” Defendant flushed down the toilet. ⁸

Analysis

I. Sufficiency of the Evidence

A. Standard of Review

When evaluating the sufficiency of the evidence, we must determine whether “ 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In making this determination, we afford the prosecution the strongest legitimate view of the evidence as well as all reasonable and legitimate inferences which may be...