State v. Well, Jr.
| Decision Date | 28 June 2001 |
| Docket Number | 00-01496 |
| Parties | STATE OF TENNESSEE v. BOBBY WELLS, JR.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs |
| Court | Tennessee Court of Criminal Appeals |
Direct Appeal from the Criminal Court for Monroe County, No. 99-095
A Monroe County jury convicted the defendant of the sale of .5 grams or more of cocaine and of a separate offense involving the sale of less than .5 grams of cocaine. For these crimes the trial court sentenced him to nine years and four years respectively as a Range I, standard offender. These sentences were ordered to run concurrently with one another.1 Furthermore, the jury assessed the defendant a fifteen thousand dollar fine on each conviction. At a subsequent hearing the trial court denied his new trial motion and revoked his probation from previous offenses. Appealing these decisions, the defendant raises the following six issues: 1) whether the trial court erred by permitting the State to introduce transcripts of taped conversations allegedly transpiring between the defendant and informant when such transcripts were admitted through a police officer who neither heard nor electronically monitored the involved conversations; 2) whether the trial court erred by permitting the prosecution to play and introduce the aforementioned tapes through the same officer; 3) whether the State failed to prove chain of custody because it neither called the lab technician who placed the evidence in the vault at the crime laboratory nor complied with Tennessee Rule of Evidence 803(6); 4) whether the trial court erred in refusing to grant the defendant a new trial based on newly discovered evidence involving the informant's motive for testifying against the defendant; 5) whether sufficient evidence existed to support the conviction; and 6) whether the defendant's probation revocation should stand when such was based upon the above-outlined new convictions and not the defendant's failure to report as was alleged in the probation violation warrant and when the convictions forming the basis for the revocation are allegedly not supported by sufficient evidence. After a review of the record, we find these claims to lack merit and, therefore, affirm the lower court's actions.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
Jerry L. Smith, J., delivered the opinion of the court, in which Joseph M. Tipton, J., and James Curwood Witt, Jr., J., joined.
Charles M. Corn, Public Defender, Cleveland, Tennessee, for appellant, Bobby Wells Jr.
Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General; Jerry N. Estes, District Attorney General; Shari Tayloe, Assistant Attorney General; for appellee, State of Tennessee.
OPINIONOn September 25, 1998, the informant Jerome Ervin met at the National Guard Armory with James Kile and Patrick Upton. At that time Kile was with the 10th Judicial District Drug Task Force, and Upton was a captain with the Sweetwater Police Department. Previously Ervin had agreed to make an undercover purchase of narcotics in exchange for being placed on community corrections early. At the armory the officers searched Ervin and his car to ensure that he did not already have any drugs. Thereafter Kile gave the informant a micro-recorder and one hundred dollars instructing him to acquire crack cocaine. As Ervin departed the armory, he was followed in a separate vehicle by Kile and Upton. The informant was out of the officers' direct observation for a few minutes in part because the area around the defendant's house afforded no good place to conceal themselves; however, Kile and Upton resumed observation as Ervin left the residence. Upon returning to the armory, Ervin returned the tape recorder and presented the officers with four rocks of a white substance later identified as a total of .7 grams of cocaine.2 According to the informant, he had acquired the narcotics from the defendant.
A little over one month later, Ervin again met with Kile behind the armory. The same search procedure was utilized after which Kile gave the informant the micro-recorder along with sixty dollars to use in purchasing the drugs. Thereafter Kile followed the informant to the defendant's home and saw Ervin enter the house. A few minutes later the officer and Ervin proceeded in their respective vehicles to the armory. Upon arrival the informant presented Kile with the recorder and one rock of a white substance subsequently found to be .3 grams of cocaine. Ervin stated that he had also purchased the latter object from the defendant.
After hearing this and other proof, the jury convicted the defendant as charged. As above-noted, the defendant now brings this appeal raising six issues.
Because the defendant's first two issues are interrelated, they will be considered jointly here. We initially turn to the defendant's assertion that the trial court erred in permitting the prosecution to play and introduce through Officer Kile tapes of the conversations between Ervin and the defendant during the drug transactions. In support of his contention that such was inappropriate, the defendant points to the fact that Kile neither heard nor electronically monitored the conversations as they transpired.
At the outset we note that the Tennessee Supreme Court has provided that:
tape recordings and compared transcripts are admissible and may be presented in evidence by any witness who was present during their recording or who monitored the conversations, if he was so situated and circumstanced that he was in a position to identify the declarant with certainty, and provided his testimony in whole, or in part, comports with other rules of evidence.
State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980), overruled on other grounds by State v. Shropshire, 874 S.W.2d 634, 638 (Tenn. Crim. App. 1993). See also State v. Robert Bacon, No. 03C01-9608-CR-00308, 1998 WL 6925 at *11 (Tenn. Crim. App. at Knoxville, Jan. 8, 1998); State v. Coker, 746 S.W.2d 167, 172 (Tenn. 1987).
In this case, though Officer Kile's voice was the first and last on both tapes, he did not claim to have been otherwise present nor to have monitored the conversations as they had transpired. Nevertheless, at trial the defense specifically elected not to object to the playing and introduction of the tapes during Officer Kile's testimony as long as the informant was to be later called.3 Ervin did testify following Officer Kile. Having acquiesced to the admission of the tapes, the defendant may not now successfully seek relief because of it. See Tenn. R. App P. 36(a).
Realizing this, the defendant asserts that the matter involves plain error. However, in order for this Court to find plain error, the error must affect a substantial right of the accused. See Tenn. R. Crim. P. 52(b). Within his argument the defendant does not elaborate on what substantial right has been violated, and as is reflected in the remainder of the analysis of this issue, we do not find that this alleged error needs to be addressed to "do substantial justice." See id.
Turning to the matter of the transcripts, the record reflects that the defendant did timely lodge an objection to their use by the jury. Asserting at trial the rationales behind his objections, defense counsel stated "... we object on ... the best evidence, and ... we think that the only person that can put the transcript together is the guy who was there and the confidential informant."
In examining the first of these objections, we observe that the transcripts were not admitted into evidence and were permitted for use only as aids during the playing of the tapes. Furthermore, the trial judge gave the following instruction before the first tape was heard:
Ladies and gentlemen, the reason [defense counsel] objected is because the tape is the best evidence. I will allow a transcript to be used to help you, but you need to understand that the transcript is not evidence and the tape is evidence. A human being transcribed that and so you listen very carefully and take as evidence only what you hear on tape."
The law presumes that juries follow the instructions they receive absent clear and convincing proof to the contrary. See, e.g., State v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983). Counsel makes no reference to any evidence that the jury disregarded the trial court's instruction nor does our review of the record reveal any. We must presume, therefore, that the jury followed the instruction.
Moreover, as to the defendant's asserted need for the parties involved in the conversation to have compiled the transcripts, Officer Kile testified that the informant Ervin had assisted in doing so,4 and the State called the informant as its next witness. Had defense counsel any questions regarding the accuracy of the transcripts, he could have cross-examined Ervin concerning this matter, yet he chose not to do so. Thus, though procedurally the trial court did not follow the guidelines from Jones, 598 S.W.2d at 223, for the admission of tapes and the use of transcripts the defendant consented to the admission of the tapes through Officer Kile, the informant assisted in making the contested transcription, and the defense had the opportunity to question the informant about the content of the tapes. In view of these facts, any error is harmless. See Tenn. R. App. P. 36(b). For these reasons this issue is meritless.
The defendant next contends that the prosecution failed to establish the requisite chain of custody for the cocaine because: 1) the State did not call the individual who had received the drugs from law enforcement and had locked away the substances in a vault for subsequent examination by forensic scientists; and 2) the State did not follow the...
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