State v. Campbell

• Citation: 549 S.W.2d 952
• Parties: STATE of Tennessee, Petitioner, v. Keith CAMPBELL, Alias Batman, Respondent.
• Decision Date: 25 April 1977
• Court: Supreme Court of Tennessee

Page 952

549 S.W.2d 952

STATE of Tennessee, Petitioner, v. Keith CAMPBELL, Alias Batman, Respondent.

Supreme Court of Tennessee.

April 25, 1977.

David L. Raybin, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.

Joe W. Henry, Jr., Henry & Henry, Pulaski, for respondent.

OPINION

BROCK, Judge.

The defendant, Keith Campbell, was convicted in the Circuit Court of Giles County of selling amphetamines, a Schedule II controlled substance, and ethchlorvynol, a Schedule IV controlled substance. See T.C.A. § 52-1432 and subsections 52-1432(a)(1)(B) and (D). The defendant was sentenced to not less than four nor more than five years in the penitentiary and fined $5,000 for selling the amphetamines and to not less than two nor more than three years in the penitentiary and fined $2,000 for selling ethchlorvynol. The penitentiary sentences were ordered to be served concurrently. The Court of Criminal Appeals reversed the judgment of the trial court in each case. The State petitioned this Court for review by certiorari alleging that the appellate court erred in two respects.

An undercover agent of the Tennessee Bureau of Investigation, Carpenter, was the only witness for the State. He testified that he was with an unnamed "confidential informant" at the Pioneer Club in Pulaski when the defendant arrived and joined them in a booth. Carpenter testified that his unnamed companion asked the defendant if he had "anything for the head," that a conversation relative to a drug purchase ensued, and that the defendant left with the understanding that he would return shortly. After waiting for some time, Carpenter and his companion left the club and drove around until they spotted the defendant in his car and hailed him. The three then went to a private residence where Carpenter paid a total of thirty dollars ($30.00) for twenty capsules, twenty dollars ($20.00) for one substance and ten dollars ($10.00) for the other. Laboratory analysis proved that ten capsules were a Schedule II amphetamine and that the other ten were ethchlorvynol, a Schedule IV controlled substance.

The defendant testified at trial and completely denied the transaction.

I

The evidence of the State, therefore, reflected that three people actively participated in the drug transaction. The State refused to disclose the name of the "confidential informant," insisting that the informant participated only in the preliminary stage of the transaction and, thus, was not actually a participant in the sale itself. The trial court agreed. Upon the authority of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and Roberts v. State, 489 S.W.2d 263 (Tenn.Cr.App.1972), the Court of Criminal Appeals reversed the convictions holding that, under the circumstances, the State did not have a "confidential witness" but, rather, a third participant in the sale and, thus, had wrongfully withheld his identity, despite the defendant's timely motions seeking that identity. We concur in this holding of the Court of Criminal Appeals.

Nevertheless, we granted certiorari to consider another question that may arise upon the new trial; viz., whether the sale of two separately classified controlled substances under the circumstances and in the manner here shown constitutes two separate and distinct offenses that permit separate convictions and separate sentences, or only a single offense. The Court of Criminal Appeals observed that if two convictions resulted upon retrial, only the conviction of the "greater offense" should be permitted to stand because there was but one sale of mixed controlled substances, relying upon Wells v. State, 509 S.W.2d 520 (Tenn.Cr.App.1973), which was subsequently affirmed by this Court in Wells v. State, 517 S.W.2d 755 (Tenn.1974). In Wells this Court held that possession at one time of different classes of controlled substances, when not acquired by separate acts, is but a single possession and, therefore, should result in only a single conviction and punishment.

However, the continued validity of the Wells decision was drawn into question by our subsequent decision in State v. Black, 524 S.W.2d 913 (Tenn.1975), wherein we rejected the "same transaction" test for determining identity of offenses. See also State v. Briggs, 533 S.W.2d 290 (Tenn.1976). In State v. Black, supra, the defendant was convicted of robbery by use of a deadly weapon and of assault with intent to commit murder. After robbing the victim, the defendant stepped back and shot him in the leg. The Court of Criminal Appeals, relying on the "same transaction" rule of Acres v. State, 484 S.W.2d 534 (Tenn.1972), held that the two offenses were susceptible of only one punishment and that conviction of one was a bar to conviction of the other. This Court reversed, rejecting the "same transaction" rule. We declined, however, in Black, "to attempt to formulate a rule to fit all possible situations," not finding the "formulation of the various 'tests' into catch words, such as 'same transaction' or 'same evidence' . . . particularly helpful." Rather, we held that:

"The cases, from their nature, have to be dealt with by analysis of the particular situations as they arise.

"Each case requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances." 524 S.W.2d at 914, 919.

In the course of our analysis of the armed robbery-aggravated assault situation presented by Black, we quoted with approval the test for determining the identity of offenses articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

"Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182.

We noted that, although the armed robbery-aggravated assault in question occurred at substantially the same time and in the course of a single "criminal episode," or "transaction," under the Blockburger test as well as under the principles announced by this Court in Duchac v. State, 505 S.W.2d 237 (Tenn.1973) the offenses were not "identical" and, therefore, that they were punishable by separate sentences.

Because of the nature of the offenses presented by Black, supra, we were able to determine, without further inquiry, that the armed robbery and aggravated assault were two separate and distinct offenses. Crimes at common law and long a part of our statutory law, robbery and assault, even when committed in the course of a "single transaction," do not present the questions of legislative intent which are here presented by the sale of controlled substances....