State v. Keel

• Decision Date: 28 April 1994
• Citation: 882 S.W.2d 410
• Parties: STATE of Tennessee, Appellee, v. Randall KEEL, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 410

882 S.W.2d 410

STATE of Tennessee, Appellee, v. Randall KEEL, Appellant.

Court of Criminal Appeals of Tennessee at Nashville.

April 28, 1994.

Permission to Appeal Denied by

Supreme Court Aug. 8, 1994.

Charles W. Burson, Atty. Gen. & Reporter, John B. Nisbet, III, Asst. Atty. Gen., Nashville, W. Michael McCown, Dist. Atty. Gen., Fayetteville, Weakley E. Barnard, Asst. Dist. Atty. Gen., Lewisburg, Gary M. Jones, Asst. Dist. Atty. Gen., Shelbyville, for appellee.

John E. Herbison, Nashville (Appeal Only), Robert H. Stovall, Jr., Asst. Public Defender, Fayetteville (Trial Only) (John H. Dickey, Dist. Public Defender, Fayetteville, of counsel), for appellant.

OPINION

JONES, Judge.

The appellant, Randall Keel, was convicted of five (5) counts of selling cocaine and one (1) count of conspiring to sell cocaine by a jury of his peers. The trial court found that the appellant was a standard offender and imposed the following Range I sentences:

a) Count 1, sale of cocaine, a Class C felony, a fine of $5,000 and confinement for three (3) years and six (6) months in the Department of Correction;

b) Count 2, conspiracy to sell cocaine, a Class D felony, a fine of $5,000 and confinement for two (2) years and (4) months in the Department of Correction;

c) Count 3, sale of cocaine, a Class C felony, a fine of $5,000 and confinement for three (3) years and six (6) months in the Department of Correction;

d) Count 5, sale of cocaine, a Class C felony, a fine of $5,000 and confinement for four (4) years and (6) months in the Department of Correction;

e) Count 7, sale of cocaine, a Class B felony, a fine of $5,000 and confinement for nine (9) years in the Department of Correction; and

f) Count 9, sale of cocaine, a Class B felony, a fine of $5,000 and confinement for nine (9) years and six (6) months in the Department of Correction.

The trial court ordered the sentences to be served concurrently. The effective sentence imposed by the trial court consists of fines totalling $30,000 and confinement for nine (9) years and six (6) months in the Department of Correction.

Four issues are presented for review. The appellant contends that the evidence is insufficient, as a matter of law, to support a finding by a rational trier of fact that he is guilty of conspiring to sell cocaine beyond a reasonable doubt. ¹ He further contends that the trial court committed error of prejudicial dimensions in charging the jury on the elements of a conspiracy, imposing an excessive sentence, and refusing to grant him an alternative sentence.

The judgment of the trial court is affirmed.

I.

The record reflects that a co-defendant, Glen Miller, was a construction contractor. The appellant, a carpenter, worked for Miller during the period in question. Miller took the appellant to work in the morning and took him home in the afternoon.

The appellant gave police a statement that he had been "dealing" in drugs for approximately a year prior to his arrest on December 19, 1991. He testified that he purchased cocaine from Miller for his personal use. He also testified that the cocaine he sold to Tammy Prentiss, who was assisting the Seventeenth Judicial District Drug Task Force, and Robert Jacobs, a member of the Task Force, was obtained from Miller.

On the evening of October 4, 1991, Prentiss and Roberts drove to a parking lot across the street from the appellant's residence. Prentiss walked across the street to the residence, met the appellant, and told him she wanted to purchase $35 worth of cocaine. The appellant advised her that he would have to go get the cocaine. Prentiss gave the appellant $40 and accompanied him to the Ridgetop Apartments. She stayed in the vehicle while the appellant went to Miller's apartment to obtain the cocaine. In a matter of minutes the appellant returned with the cocaine. When he gave Prentiss the cocaine, he told her that he had "bumped the bag," meaning he had consumed a small quantity of the cocaine.

Prentiss made additional purchases from the appellant. On November 8, 1991, she purchased $50 worth of cocaine. On December 11, 1991, she purchased $300 worth of cocaine from the appellant. On November 21, 1991, Jacobs personally purchased $50 worth of cocaine from the appellant. He also purchased $300 worth of cocaine from the appellant on December 19, 1991. The appellant testified that he "bumped the bag" on each of these occasions. On December 19, 1991, he admitted that Miller gave him $20 "for gas." There was $20 missing from the marked money found in Miller's apartment when members of the Drug Task Force executed a search warrant that evening.

The Marshall County Grand Jury returned a twelve count indictment charging the appellant with five substantive counts of selling cocaine. There was one count for each sale the appellant made to Prentiss and Jacobs. In addition, the appellant was charged in five additional counts of conspiring to sell cocaine. In three of the conspiracy counts, it was alleged that the appellant and Miller conspired to sell cocaine. In two of the conspiracy counts, it was alleged that the appellant, Miller, and Paul Keel, the appellant's brother, conspired to sell cocaine. The appellant was convicted of the five substantive offenses of selling cocaine. He was also convicted of the five conspiracy counts. The trial court subsequently dismissed four of the conspiracy counts.

The conspiracy count of which the appellant stands convicted alleges:

THE GRAND JURORS of Marshall County, Tennessee, duly empaneled and sworn, upon their oath, present that:

Randall Keel

Glen Miller

On the 4th day of October, 1991, in Marshall County, Tennessee, before the finding of this indictment, unlawfully and feloniously did agree with another that one or more of them would engage in conduct that constitutes the offense of Sale of a Controlled Substance to wit: Cocaine, TCA 39-17-417, with each having the culpable mental state required for the commission of that offense and with each for the purpose of promoting or facilitating the commission of the offense, in that Randall Keel did meet and discuss with a confidential informant of the Seventeenth Judicial District Drug Task Force the sell [sic] of a quantity of cocaine to the confidential informant and received money from the said confidential informant for the purpose of selling to the said confidential informant Cocaine and then delivering the said cocaine to the said confidential informant thereby, committing an overt act in pursuant of the conspiracy, the said Glen Miller did supply to the said Randall Keel the cocaine which was then sold to the said confidential informant, thereby, committing an overt act in pursuant of the conspiracy, in violation of Tennessee Code Annotated Section 39-12-103, and against the peace and dignity of the State of Tennessee.

In the Issues Presented for Review section of his brief, the appellant presents the following issue: "Whether the evidence is sufficient for any rational trier of fact to find beyond a reasonable doubt that the particular conspiracy alleged in Count Two of the indictment existed." However, in the Argument section of his brief, the appellant poses the issue as follows: "The proof at trial indicates a fatal variance from the conspiracy allegations of Count Two of the indictment." Neither of these issues were raised in the motion for a new trial or the amended motion for a new trial.

The state contends that the appellant has waived this issue because it was not included in the motion for a new trial. Tenn.R.App.P. 3(e). In the alternative, the state argues the appellant has failed to establish that there was a variance, or if there was a variance, it was neither material nor prejudicial to the appellant. In his reply brief, the appellant contends that he has a right in this Court to pursue this issue, notwithstanding the fact it was not raised in the motion for a new trial. He argues that if this Court finds there is a material variance, the remedy is dismissal, as opposed to the granting of a new trial.

A.

The determination of whether this issue has been waived hinges upon the interpretation of Rule 3(e), Tennessee Rules of Appellate Procedure. This rule provides in part:

[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived....

The initial draft of the Tennessee Rules of Appellate Procedure did not provide for the waiver of issues which were not included in a motion for a new trial. ² Both the trial judges and the appellate judges expressed dissatisfaction with the proposed rule. The trial judges wanted the opportunity to consider an alleged error before the initiation of the appellate process. The appellate judges likewise wanted the trial court to have the opportunity to consider the alleged errors; and they wanted a record to be created with regard to the errors. ³ Thus, the rule was amended prior to its adoption.

In criminal cases, the phrase "upon which a new trial is sought" is pivotal when determining whether a party has waived an issue by failing to include it in a motion for a new trial. This Court has held that the failure to file a motion for a new trial, the late filing of a motion for a new trial, and the failure to include an issue in a motion for a new trial results in waiver of all issues which, if found to be meritorious, would result in the granting of a new trial. ⁴ The waiver provision of Rule 3(e), however, does not apply when the issue, if found to be meritorious, would result in the dismissal of the prosecution against the accused. ⁵

The ultimate question which this...