State v. Holbrooks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
NOVEMBER 1997 SESSION
February 11, 1998

Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9701-CR-00011
Appellee, )
) DAVIDSON COUNTY
VS. )
) HON. THOMAS H. SHRIVER,
LARRY A. HOLBROOKS, ) JUDGE
)
Appellant. ) (Possession of cocaine with intent
to sell; evading arrest)

FOR THE APPELLANT: FOR THE APPELLEE:

DWIGHT E. SCOTT JOHN KNOX WALKUP
4024 Colorado Ave. Attorney General & Reporter
Nashville, TN 37209
LISA A. NAYLOR
Asst. Attorney General
450 James Robertson Pkwy.
Nashville, TN 37243-0493

VICTOR S. JOHNSON, III
District Attorney General

JOHN ZIMMERMANN
Asst. District Attorney General
Washington Square, Suite 500
222 Second Ave., North
Nashville, TN 37201

OPINION FILED:____________________

AFFIRMED IN PART;
REVERSED AND DISMISSED IN PART

JOHN H. PEAY,
Judge
 OPINION

The defendant was indicted in April 1995 on charges of possession with

intent to sell more than twenty-six grams of cocaine, criminal trespass, and evading

arrest. After a trial, a jury convicted him of the possession charge and the evading arrest

charge. The defendant was sentenced to eight years in the Tennessee Department of

Correction for the possession conviction and was sentenced to a concurrent sentence

of eleven months and twenty-nine days for the evading arrest conviction. In this appeal

as of right, the defendant contends that the evidence was insufficient to convict him of

either offense and that the trial court erred when it refused to grant his motion to

suppress the physical evidence in the case. After a review of the record and applicable

law, we find that the motion to dismiss was properly denied and that the evidence

sufficiently supported his conviction for possession with intent to sell more than twenty-six

grams of cocaine. However, we reverse and dismiss the defendant’s conviction for

evading arrest.

The charges against the defendant stemmed from an incident on November

30, 1994, at the James Casey Housing Project in East Nashville. Metro Police Officer

Damion Huggins testified that the police department had received several calls that day

reporting drug activity in the area near Kirkpatrick Elementary School. As a result of

these calls, Officer Huggins organized several officers to investigate the area. Officer

Huggins and another officer decided to approach the area on foot so as to avoid early

detection. Other officers continued to patrol the area from their patrol cars. Officer

Huggins testified that as he approached a front porch area of one of the housing units,

he observed several individuals involved in what appeared to have been a dice game.

As he approached closer, those involved in the game saw him and began to run.

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 The officer then began to pursue the defendant. He testified that as he ran

after the defendant, he saw the defendant reach into his front area as if he were trying

to grab something. As the defendant continued to run and continued to tug at his front

area, Officer Huggins saw a plastic bag sticking out of the defendant’s pocket.

Eventually, the defendant ran behind a nearby house and Officer Huggins ran around the

front of the house hoping to cut off the defendant’s escape. The officer testified that he

had next seen the defendant crouched down behind a white picket fence near the front

of the house. He further testified that the defendant had been doing something with his

hands. At this point, Officer Huggins ran toward the back of the house in order to stop

the defendant. When he approached the defendant, he saw that his front pocket was

now empty and that the lining was hanging out.

Officer Huggins testified that he then determined that the defendant was not

a resident of the James Casey Housing Project and thus he arrested him for trespassing.

The officer then returned to the fenced area where the defendant had been crouched.

There he found a large plastic bag with fifty-one smaller bags inside, each of which

contained a rock of crack cocaine. Officer Huggins then read the defendant his Miranda

rights, after which the defendant said, “You didn’t find [the drugs] on me; so, you can’t

charge me with them.”

Officer Huggins testified that three men, including the defendant, had run

from the porch area when he had approached the group. However, he stated that the

defendant had been the only person to run into the fenced area where the cocaine was

eventually retrieved. He further testified that an elderly woman lived in the house that

was surrounded by the fence.

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 Metro Police Officer William A. Stiltz testified that he had been one of the

officers who had remained in the patrol cars. He said that he spotted one person running

toward his car. As he apprehended this person, he spotted the defendant going around

the back of a nearby house. He further saw the defendant crouching down at the fenced

area at the corner of the house. Officer Stiltz testified that he had then yelled to Officer

Huggins that the defendant was hiding behind the fence.

The State then presented evidence to establish the chain of custody for the

cocaine. Terri McAbee, of the Metro property and evidence section, testified that the

cocaine had been sealed and put in storage on November 30, 1994. She further testified

that Officer Joy Moore had possession of the evidence on December 1, 1994. McAbee

stated that the evidence had been delivered to the TBI lab on December 8, 1994, and

had been returned to her office on February 22, 1995.

Donna White Flowers, a forensic chemist with the TBI, confirmed that her

office received the evidence in a sealed plastic bag on December 8, 1994. She testified

that she had begun her analysis on January 24, 1995, and had completed it on February

3, 1995. She determined that the rock-like substances were cocaine. She further

testified that she had received one large plastic bag with fifty-one smaller bags each

containing one rock. Two other rocks were also loose in the large bag. Flowers testified

that she weighed the fifty-one rocks within their bags, then subtracted the weight of the

bags to reach a total of 27.4 grams of cocaine. The other two rocks weighed 2.1 grams,

for a total amount of 29.5 grams of cocaine.

On cross-examination, Flowers stated that she did not test each rock

individually to determine if it were cocaine. She testified that the policy of the TBI was

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to only test the square root of the number of samples, which in this case was eight. Thus,

she tested eight rocks and determined all eight to be cocaine. She then performed a

visual test and determined that all of the samples looked the same.

The defendant presented no evidence and a jury subsequently convicted

him of possession with intent to sell more than twenty-six grams of cocaine and evading

arrest. The defendant now appeals and makes several challenges to the sufficiency of

the evidence. In addition, he challenges the trial court’s refusal to grant his motion to

suppress the cocaine found at the scene of his arrest. We choose to address the motion

to suppress issue first.

The defendant argues that he was illegally pursued and stopped by Officer

Huggins. He alleges that the officer did not have the requisite reasonable suspicion to

stop him. After a hearing on this subject, the trial judge denied the defendant’s motion

to suppress. The findings of a trial judge on factual issues in a suppression hearing will

be upheld unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18,

23 (Tenn. 1996).

In this case, the trial court ruled from the bench that the defendant’s motion

lacked merit. The court found that Officer Huggins had been told to investigate an area

in the James Casey Housing Project for drug activity. When Officer Huggins arrived on

the scene, he found a dice game, which the trial judge noted, “in itself is illegal activity.”

The trial judge further found that when the participants in the game fled the area, “that

[gave] any law enforcement officer reason to suspect -- to suspect that a crime [was]

being committed. People don’t run from the police unless they are -- they’re doing

something they don’t want the police to know about.” However, he concluded that the

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case need not be analyzed under a probable cause or reasonable suspicion theory

because the defendant had not actually been seized or arrested when the officer was

merely in pursuit. In reaching this decision, the trial judge relied on the case of California

v. Hodari D., 499 U.S. 621 (1991).

The facts of Hodari D. are quite similar to the facts in the case before this

Court. In that case, police officers were patrolling a high crime area when they noticed

several people gathered around a car. When the police officers approached, the

individuals, including Hodari D., scattered and began to run. As Hodari D. was running,

the officer shouted for him to stop. The officer noticed that while running, Hodari D. had

removed something like a small rock from his pocket and had thrown it on the ground.

Eventually, the police officer tackled Hodari D. and searched and handcuffed him. The

officer then located the discarded rock and determined that it was cocaine. Before trial,

Hodari D. filed a motion to suppress all evidence. The case eventually reached the

Supreme Court, where the Court addressed the narrow issue of whether the officer’s

pursuit of Hodari D. constituted a “seizure” as defined within the Fourth Amendment.1

The Court determined that it did not, thus, the evidence was not fruit of an unlawful

seizure and could be used to prosecute Hodari D.

We see little difference between the case now before us and Hodari D.

While we found no Tennessee cases specifically embracing the logic of Hodari D., we

found none rejecting it.2 Although we have failed to find any guidance from our own

1
Because the State had conceded that the officer did not have the reasonable suspicion
neces sary to justify sto pping H odari D., the Court ha d no oc casion to addres s that issu e. Hodari D., 499
U.S. at 62 3 n.1.

2
Our research produced only one published case in which Hodari D. was cited. In State v.
Greene, 929 S.W.2d 376 (Tenn. Crim. App. 1995), a panel of this Court cited it for the proposition that
there must be either a physical application of force by the officer or a submission to the officer's show of
authority before a “seizure” occurs. In that case, the defendant argued that he had been “seized” when
a police officer asked whether he had been driving the automobile in question. No police chase was

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Supreme Court, we have determined to follow the rule announced by the United States

Supreme Court in Hodari D. We conclude that the pursuit of the defendant was not a

seizure, and thus the plastic bag of rock cocaine found by Officer Huggins was not fruit

of an illegal seizure. Rather, the bag had been abandoned by the defendant and lawfully

recovered by the officer. State v. Brenda Hill, No. 274, Bradley County (Tenn. Crim. App.

filed August 7, 1990, at Nashville); see also Abel v. United States, 362 U.S. 217, 241

(1960). Therefore, we conclude that the defendant’s motion to suppress was properly

denied by the trial court.

As his remaining issues, the defendant attacks the sufficiency of the

evidence that convicted him of possession with intent to sell cocaine and evading arrest.

Specifically, the defendant claims that the State failed to establish a proper chain of

custody for the cocaine, that the evidence was insufficient to prove the amount of cocaine

found, and that the evidence was insufficient that the defendant had ever possessed the

cocaine.

We will first address the chain of custody issue. It is well-established that

as a condition precedent to the introduction of tangible evidence, a witness must be able

to identify the evidence or establish an unbroken chain of custody. State v. Goodman,

643 S.W.2d 375, 381 (Tenn. Crim. App. 1982). However, the failure to call all of the

witnesses who handled the evidence does not necessarily preclude its admission into

evidence. See State v. Johnson, 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984). While

the State is not required to establish facts which exclude every possibility of tampering,

the circumstances established must reasonably assure the identity of the evidence and

its integrity. State v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). This

involved.

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issue addresses itself to the sound discretion of the trial court, and the court’s

determination will not be disturbed in the absence of a clearly mistaken exercise of such

discretion. State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim. App. 1987).

The defendant argues that the State failed to present an adequate chain

of custody because no one testified as to the whereabouts of the evidence from the time

Officer Moore had it on December 1, 1994, to the time it arrived at the TBI lab on

December 8, 1994. Terri McAbee, who works in the Metro property section, testified that

Officer Joy Moore had been in possession of the evidence on December 1. However,

the State informed the court that Officer Moore was unable to testify due to health

reasons. Instead, Lieutenant Bill Reese testified as to the normal policies followed by the

property section. He testified that normal procedures call for evidence to be turned over

to Officer Moore who is in charge of the drug vault. If the drugs need to be transferred

anywhere, such as the TBI lab, Reese testified that Moore would transport the evidence

in a sealed condition. He further testified that evidence is transported to the TBI on a

weekly basis. On cross-examination, Reese stated that it is not standard policy for

evidence to be taken to the TBI lab a week after an officer removed it from the property

room.

First, we note that McAbee and Huggins identified the cocaine as the

evidence they initially received. The cocaine was packaged in such a manner to make

it distinctive from other drug evidence being held by the property section. Thus, the real

question involves the integrity of the evidence, not the identification. The defendant

maintains that the evidence was unaccounted for for as much as a week after being

signed out by Officer Moore. However, it is not at all clear from the record that Moore

actually removed the evidence. The following is from the direct examination of McAbee:

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 Q: . . . [W]hen were the drugs in Exhibit Six for identification
given to you at the evidence room?

A: This was received on November 30, ‘94.

Q: Okay. When is the next time the drugs left the property
and evidence room and why did they leave, according to the
record?

A: Ummm . . . let’s see. When it leaves the property room,
it goes to the lab -- Is that -- is that what you’re talking about?

Q: Yes.

A: It is -- it goes to the lab -- uh -- the -- Officer Moore who
receives and enters it in and Sergeant Sage. And, this was
on -- uh -- let’s see. Officer Moore has it on 12-1-94 and,
then, she takes it to the lab.

Q: When does it go to the lab?

A: It goes to the lab -- uh -- 12-8-94.

Q: Who carried the drugs to the lab on 12-8-94?

A: Officer Joy Moore.

Q: And, who is she as relates to the evidence room?

A: She is the officer that logs in the drugs and -- uh --
properly stores them in our vault and takes them to the lab.

From the above, it is not at all apparent that Officer Moore actually removed the evidence

from the property room. Rather, we infer, as did the trial court, that the drugs remained

under “lock and key” until the time that they were delivered to the TBI lab. Additionally,

McAbee testified that the evidence was sealed and Flowers testified that she received

the evidence in a sealed condition. We conclude that the circumstances established by

the State reasonably assured the integrity and identity of the evidence. Ferguson, 741

S.W.2d at 127 (Tenn. Crim. App. 1987). We find no abuse of discretion by the trial court

on this issue.

The defendant next claims that the evidence was insufficient to prove that

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the cocaine weighed in excess of twenty-six grams. He claims that Flowers, who

performed the analysis at the TBI lab, did not account for the weight of the bags when

she stated the weight of the evidence. To the contrary, Flowers testified that the total

cocaine weight of the fifty-one bagged rocks and the two loose ones was 29.5 grams.

She specifically testified that that number did not include the bag weight. She explained

that she weighed the bagged rocks as a group in their individual bags. She then weighed

one of the small bags, multiplied the weight by fifty-one, and subtracted that amount from

the total weight of the bags plus the cocaine to arrive at the weight of the cocaine only.

We see nothing to suggest that this evidence is not entirely sufficient to prove that the

cocaine weighed in excess of twenty-six grams. This issue is without merit.

The defendant next contends that the evidence was insufficient to prove

that the cocaine found by Officer Huggins had actually been in the defendant’s

possession. The defendant claims that his mere proximity to the area where the drugs

were found is insufficient to support his conviction. He argues that the drugs were found

in a “high drug trafficking area” and that “drugs are discarded everywhere in the area.”

A defendant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned by

the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences which

may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact

to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).

When an accused challenges the sufficiency of the convicting evidence, we

1 0
must review the evidence in the light most favorable to the prosecution in determining

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to

afford the State the strongest legitimate view of the proof contained in the record as well

as all reasonable and legitimate inferences which may be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

From our review of the record, we find ample evidence to support that the

drugs had been in the defendant’s possession. Officer Huggins testified that as he had

been chasing the defendant, he had seen the defendant attempt to pull a plastic bag from

his front pocket. He further testified that the defendant had been the only person who ran

into the fenced area. Officer Huggins and Officer Stiltz testified that they had seen the

defendant crouched in the corner of the fenced area where the drugs were eventually

found. Officer Huggins further testified that he had seen the defendant doing something

with his hands while he had been crouched by the fence. We find that it is entirely

reasonable for the jury to have concluded that the evidence discovered by Officer

Huggins had been in the defendant’s possession. This issue is without merit.

As the defendant’s final issue, he contends that the evidence was

insufficient to convict him of evading arrest. He argues that he did not know the officer

intended to arrest him or that he was under arrest. Tennessee Code Annotated

§ 39-16-603(a)(1) provides that:

[I]t is unlawful for any person to intentionally flee by any
means of locomotion from anyone the person knows to be a
law enforcement officer if the person:

(A) Knows the officer is attempting to arrest the
person; or

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 (B) Has been arrested.

Obviously, the defendant had not been arrested when he began running from Officer

Huggins. The issue is whether the officer was attempting to arrest the defendant and if

so, whether the defendant knew that. From the evidence and from the initial discussion

about the police pursuit, we cannot conclude that the officer was attempting to arrest the

defendant. Officer Huggins’ suspicion was aroused when the defendant and his

companions began fleeing the front porch area and thus he gave chase. However, we

cannot conclude that the officer was attempting to arrest the defendant because the

officer lacked probable cause for an arrest. In fact, when the officer did detain the

defendant, the officer had to ask a few questions to determine whether he could arrest

the defendant for trespassing in the housing community. While the officer was merely

in pursuit, he could not have been attempting to arrest the defendant, therefore, the

defendant’s conviction for evading arrest cannot stand.

In conclusion, we find that the defendant’s motion to dismiss was properly

denied and that the evidence sufficiently supported his conviction for possession with

intent to sell more than twenty-six grams of cocaine. However, we reverse and dismiss

the defendant’s conviction for evading arrest.

_________________________________
JOHN H. PEAY, Judge

CONCUR:

______________________________
JOSEPH M. TIPTON, Judge

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______________________________
DAVID H. WELLES, Judge

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