State v. Crabtree

• Decision Date: 23 March 1983
• Citation: 655 S.W.2d 173
• Parties: STATE of Tennessee, Appellee, v. James CRABTREE, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 173

655 S.W.2d 173

STATE of Tennessee, Appellee, v. James CRABTREE, Appellant.

Court of Criminal Appeals of Tennessee at Knoxville.

March 23, 1983.

Richard L. Moore, Marietta, Ga., James F. Logan, Conrad Finnell, Cleveland, for appellant.

William M. Leech, Jr., State Atty. Gen. and Reporter, J. Andrew Hoyal, II, Asst. State Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Joseph McCoin, Asst. Dist. Atty. Gen., Cleveland, for appellee.

OPINION

BYERS, Judge.

The defendant was convicted of conspiracy to manufacture more than two hundred grams of methaqualone and was sentenced to serve twenty (20) years in the penitentiary.

The defendant says the evidence was insufficient to support the jury verdict, says the trial court abused its discretion in denying the defendant's motion for a continuance, says the trial court erred in limiting the defendant's cross-examination of a state's witness during a jury-out hearing, says the trial court erred in refusing to allow the defendant to take the fifth amendment if the defendant chose to testify in a jury-out hearing on the admissibility of tapes, says the trial court improperly admitted into evidence transcripts of tape recorded conversations between the defendant and agents for the drug enforcement administration, says the trial court erred in denying the defendant's special instruction regarding how the jury is to consider evidence of other crimes, says the trial court erred in admitting into evidence a threat made by co-conspirators to a witness for the state approximately a month after the defendant's arrest, and says the trial court erred in overruling the defendant's motion to suppress.

The case is remanded for a hearing on the motion to suppress.

The defendant had been under surveillance by local and federal officers prior to his arrest. The defendant operated a business in Etowah. On January 7, 1981, a burglary alarm sounded at the building where the defendant's business was located. The building, in which the defendant's business was located, was divided and another business was also located there. Police officers responded to the burglary alarm and entered the building. The officers searched throughout the building to determine if a burglar was in the building. On the second floor in the portion of the building which the defendant used, a laboratory was found. The state presented evidence that this laboratory was capable of making methaqualone.

The state introduced transcripts of telephone conversations between the defendant and a federal drug agent about drug transactions and the purchase of a press to make methaqualone tablets. The state also introduced transcripts of conversations between an informant, the defendant and two others in Florida in which the people discussed a situation where some methaqualone had been manufactured and in which drug transactions were discussed.

The state's evidence showed the defendant also purchased chemicals in Ohio, which could be used in manufacturing methaqualone.

Chemicals and an instruction book on how to make methaqualone were found in the laboratory. An expert examined these and testified the only thing not present at the laboratory necessary to manufacture methaqualone was a pint of cooking oil.

The defendant offered no evidence to refute the evidence of the state.

The evidence of the state was circumstantial. A crime may be shown by circumstantial evidence, and the connection of an accused with the crime may also be shown by circumstantial evidence. The evidence in this case is sufficient to establish the crime and the defendant's guilt beyond a reasonable doubt. T.R.A.P. 13(e).

We find the trial court did not err in denying a continuance in this case because of the addition of witnesses to the list of witnesses which the state intended to call. These witnesses were from out of state. The bulk of these names were given to defense counsel ten days prior to trial, and two of the names were given to the defendant five days prior to trial.

The failure of the state to list witnesses names on the indictment is not a sufficient basis for upsetting a judgment unless there is a showing such failure unfairly prejudices an accused. Houston v. State, 567 S.W.2d 485 (Tenn.Cr.App.1978). When additional witnesses are added to the list of those the state intends to call and the defendant contends he has not had sufficient opportunity to interview such witnesses, the trial court must determine whether a continuance is required in order that the defendant will not be unfairly prejudiced. This decision is left to the discretion of the trial judge, and unless the record shows an abuse of this discretion, the action of the trial court will not be disturbed on appeal. State v. Bush, 626 S.W.2d 470 (Tenn.Cr.App.1981). The record in this case does not show the trial court abused its discretion in this matter.

The defendant contends he should have been granted a continuance because he says he was given insufficient notice of the state's intention to use transcripts of taped conversations as evidence at trial. On Friday prior to the trial which began on Monday, the state obtained tapes of conversations, which showed the defendant was involved in illicit drugs and which were pertinent to the charges against him. The state notified the defendant's attorney about the tapes, and the attorney listened to them on that day. The transcript was furnished to the defendant on the day prior to their introduction into evidence. We find nothing in the record to show the trial judge abused his discretion in denying a continuance.

The defendant claims he was not allowed to fully cross-examine a state's witness in a jury-out hearing to determine the authenticity of tape recordings. Defense counsel, to support his theory of a double jeopardy violation, sought to show through cross-examination of the witness that the defendant had been convicted in Federal District Court in Florida on the basis of evidence contained in the tapes. The trial court found this line of questioning was not material and prohibited it. We agree with the trial court's action. Under the dual sovereignty doctrine, a defendant can be prosecuted and convicted in both state and federal court upon the same evidence without offending the double jeopardy clause.

The defendant claims he was erroneously denied the right to take the fifth amendment if he testified during the hearing on the admissibility of the tapes. It is clear the defendant wished to testify about the federal conviction in order to support his double jeopardy theory. He asserted he would invoke his fifth amendment right to any questions concerning his connection with the conversations in the tapes. The hearing was to determine the authenticity of the tapes. The double jeopardy claim was irrelevant. If the defendant intended to testify at the hearing, he could not selectively invoke the fifth amendment to questions about the authenticity of the tapes. The trial judge did not err in this regard.

The introduction of tapes, which showed the defendant was involved in the illicit distribution of drugs, was not erroneous on the theory that this impermissibly placed the defendant's character in evidence. The defendant argues his character had not been placed into evidence and that these tapes, which were introduced by the state, were not substantive evidence indicating guilt but were rather evidence of...