State v. Marshall

• Decision Date: 18 March 1993
• Citation: 870 S.W.2d 532
• Parties: STATE of Tennessee, Appellee, v. Louis Edward MARSHALL, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 532

870 S.W.2d 532

STATE of Tennessee, Appellee, v. Louis Edward MARSHALL, Appellant.

Court of Criminal Appeals of Tennessee at Nashville.

March 18, 1993.

Permission to Appeal Denied

Sept. 7, 1993.

John E. Herbison, Nashville (On Appeal), Russel Church, Asst. Public Defender, Clarksville (At Trial), for appellant.

Charles W. Burson, Atty. Gen. and Merrilyn Feirman, Asst. Atty. Gen., Nashville, Patrick McCutchen, Dist. Atty. Gen. and Edward DeWerff, Asst. Dist. Atty. Gen., Clarksville, for appellee.

OPINION

TIPTON, Judge.

The defendant, Louis Edward Marshall, was convicted by a jury in the Montgomery County Circuit Court for the offense of possession of cocaine with intent to sell, a Class B felony. He was sentenced to twelve years in the Department of Correction, the maximum for a Range I, standard offender, and fined $10,000. In this appeal as of right, he contends the following:

(1) The indictment failed to state an offense by not alleging that he knowingly possessed cocaine.

(2) The cocaine should have been suppressed as evidence because it was obtained by an unreasonable search and seizure without a warrant.

(3) Plain error was committed by the state's improper jury argument.

(4) The sentence, including the fine, was excessive.

The evidence presented at the suppression hearing adequately conveys the facts upon which the defendant was convicted. Clarksville police officer Mike Davis testified that on March 2, 1991, he received an anonymous telephone call from a man who said that the defendant was at the Tenth Street Lounge area selling crack cocaine. The informant described the clothing the defendant was wearing and said that the defendant had crack cocaine in a small plastic bottle. When Davis asked how the informant knew the defendant had cocaine, the informant responded, "I saw him."

Davis stated that he knew the defendant and was aware of about forty arrests of the defendant related to robberies, attempted murder, aggravated assaults, one for cocaine and one or two for marijuana. He said that the defendant was known to carry weapons and had given the police a "hard time" in the past. Also, Davis testified about his experience in drug law enforcement and his familiarity with the Tenth Street Lounge area. He said there was a problem with crack cocaine dealing in the area by people who, when arrested, possessed weapons. He stated that dealers sold to people in vehicles which pulled up. The dealers approached the windows and leaned inside for the drug transaction to be less conspicuous. As to pedestrians, Davis said people approached the dealers who would motion the buyers to the side or into a building where the transactions occurred.

Davis testified that after receiving the call, he and agent Jeff Stanfill went to the designated area for surveillance, using binoculars. They saw the defendant whose clothing met the informant's description. Davis said that they saw the defendant motioning people into a barber shop and approaching cars, leaning inside windows, and going back and forth from his shirt and pants pockets while leaning into the cars. They observed this activity for thirty to forty-five minutes. Stanfill testified that he saw the defendant go into his shirt pocket several times and, on one particular occasion, saw the defendant hand a unit of U.S. currency, denomination unknown, to a person inside a car.

The officers left the area to radio for help, during which time they arrested and booked another individual. Afterwards, they returned to their original vantage point and observed the defendant for another thirty minutes while he conducted the same activities as before. They decided to move in.

Davis testified that the defendant was in the barber shop and was asked to step outside. Davis said he conducted a pat-down search and retrieved a Tylenol bottle from the defendant's pocket. He opened the bottle and found forty-one rocks of crack cocaine. An additional search of the defendant uncovered fifty more cocaine rocks in a plastic bag. Also, the police found $646.00 in cash in the defendant's shirt pocket.

The defendant testified at the hearing and presented other witnesses to prove that he was not selling cocaine as described by the police officers. In fact, the defendant testified that he did not have any cocaine on the day in question and that the officers had planted it on him to make a case.

I

The indictment, in pertinent part, alleged that the defendant

did possess, with intent to sell, a controlled substance, to-wit: Cocaine, as classified in Section 39-17-408 of the Tennessee Code Annotated, in violation of TCA 39-17-417 and against the peace and dignity of the State of Tennessee.

The defendant contends that the indictment fails to allege all the elements of the offense in that it does not allege that his possession was knowing. He refers to the fact that T.C.A. § 39-17-417(a) describes drug offenses as follows:

(a) It is an offense for a defendant to knowingly:

(1) Manufacture a controlled substance;

(2) Deliver a controlled substance;

(3) Sell a controlled substance; or

(4) Possess a controlled substance with intent to manufacture, deliver or sell such controlled substance.

(emphasis added).

The defendant states that Tennessee law provides that an indictment must allege everything necessary to constitute an offense and that the failure to do so divests the court of the necessary jurisdiction to proceed with the criminal prosecution. See State v. Morgan, 598 S.W.2d 796, 797 (Tenn.Crim.App.1979); State v. Hughes, 212 Tenn. 644, 371 S.W.2d 445, 447 (1963). Thus, he concludes that the failure of the indictment to allege his knowing possession renders his conviction void.

While tacitly acknowledging that a violation of T.C.A. § 39-17-417 requires a culpable mental state, the state responds that the indictment's specific reference to the violated statute should constitute a sufficient allegation of the scienter required for the offense, citing cases to that effect from other jurisdictions. See People v. Del Pilar, 177 A.D.2d 642, 576 N.Y.S.2d 346 (1991); State v. Petrone, 161 Wis.2d 530, 468 N.W.2d 676 (1991); City of Seattle v. Riggins, 63 Wash.App. 313, 818 P.2d 1100 (1991); State v. Howell, 194 Ga.App. 594, 391 S.E.2d 415 (1990). In response, the defendant counters with United States v. Pupo, 841 F.2d 1235 (4th Cir.1988), cert. denied, 488 U.S. 842, 109 S.Ct. 113, 102 L.Ed.2d 87 (1988) in which the Fourth Circuit, en banc, rejected the use of a reference to a statute to supply an element of the charge. The court dismissed charges of possession with intent to distribute cocaine and distribution of cocaine because the indictment failed to allege that the defendants acted "knowingly or intentionally" as required by the federal drug law.

In State v. Cornellison, 166 Tenn. 106, 59 S.W.2d 514 (1933), our Supreme Court quoted with approval the following language in Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932):

The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction."

59 S.W.2d at 515 (emphasis added); accord State v. Overton, 193 Tenn. 171, 245 S.W.2d 188 (1951); State v. Smith, 612 S.W.2d 493 (Tenn.Crim.App.1980); Morris v. State, 608 S.W.2d 154 (Tenn.Crim.App.1980). Further, T.C.A. § 40-13-202 requires an indictment to "state the facts constituting the offense in ordinary and concise language ... in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment...."

In the context of Tennessee statutory and case authority on the subject, we do not view the authority cited by the state as persuasive. By requiring the indictment to allege the facts which constitute the offense, Tennessee necessarily requires that the factual allegations must relate to all the essential elements of that offense including that of scienter. Thus, a reference to a criminal statute should not suffice in terms of replacing the necessary factual allegations. ¹

However, we do not view the holding in Pupo as persuasive authority for dismissing the indictment in this case. An indictment, to be sufficient, need not always contain the language of the statute in order to allege the element of scienter required for the offense. In Finn v. United States, 256 F.2d 304, 306 (4th Cir.1958), upon which Pupo partly relied, the Fourth Circuit stated that "[w]here willfulness or knowledge is made an element of the crime, the statutory requirement ² is not to be ignored. The charge must either include these terms, or words of similar import."

Also, in Hagner, the United States Supreme Court, although stressing the need for the essential elements to be alleged, recognized that an indictment failing to allege the elements of an offense in the terms of the statute may still be sufficient, if the elements are necessarily implied from the allegations made. 285 U.S. at 430, 52 S.Ct. at 419. It cited Grandi v. United States, 262 F. 123 (6th Cir.1920) and Phipps v. United States, 251 F. 879 (4th Cir.1918) as appropriate examples. Id. In Grandi, the Sixth Circuit held that a charge of possession of goods knowing they had been stolen from part of an interstate commerce shipment "naturally implies" that the goods were, in fact, stolen and a separate allegation of such status was unnecessary. 262 F. at 124. In Phipps, a seditious conspiracy case requiring the intent to use force, the Fourth Circuit held that the allegation that the overt act was committed...