State v. Baker

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
MARCH SESSION, 1996
October 30, 1997

Cecil W. Crowson
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9508-CC-00277
Appellate Court Clerk
)
Appellee, )
)
) FRANKLIN COUNTY
VS. )
) HON. J. CURTIS SMITH
PATSY O. BAKER, ) JUDGE
)
Appellant. ) (Direct Appeal-Simple Possession of
) Controlled Substance)

FOR THE APPELLANT: FOR THE APPELLEE:

PHILIP A. CONDRA JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
12th Judicial Distirct
P. O. Box 220 KAREN YACUZZO
Jasper, TN 37347 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243

J. MICHAEL TAYLOR
District Attorney General

STEVEN M. BLOUNT
Assistant District Attorney
1 South Jefferson St.
Winchester, TN 37398

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
 OPINION

Appellant Patsy O. Baker appeals from a jury verdict rendered in the

Fran klin County Circuit Court finding her guilty of (1 ) simple p ossess ion of a

Sche dule VI controlled substance, (2) evading arrest, and (3) failure to stop at a

stop sign. After a sentencing hearing, Appellant received the following respe ctive

sentences for the offenses listed a bove: (1) eleven mon ths and ninete en days

of probation to be effective after service of ten d ays in th e Fran klin Co unty Ja il,

$250 fine, and 100 hours of comm unity se rvice on the co nviction for sim ple

possession; (2) a concurrent term of eleven months and twenty-nine days of

probation on the conviction for evading arrest; and (3) thirty days of probation on

the conviction for failure to sto p at a stop sign. Appellant presents three issues

for consid eratio n on th is direc t appe al: (1) wh ether th e trial co urt erre d in

overruling Appe llant's motion to dism iss based on allegations of illegal seizure of

Appellant without probable cause; (2) whether the trial court p roper ly allowed a

police officer to testify regarding the purposes of an affidavit of complaint; and (3)

whether the trial court properly sentenced Appellant in comp liance with

Tennessee Code Annotated Section 40-35-101 et seq. After a review of the

record, we affirm the conviction.

I. FACTUAL BACKGROUND

The proof shows that on Febru ary 28, 1994, Appellant arrived at the

Fran klin County Jail for the purpose of visiting an inmate. A corrections officer

then informed Appellant that she would be required to submit to a strip search

before being allo wed visitatio n. After Ap pellant req uested an expla nation, th e

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corrections officer stated that she h ad rec eived in forma tion tha t Appe llant wo uld

be bringing drugs to the jail. Appellant declined to be searched and walked

briskly from the jail. Appellant then got into her van and began driving away. At

this time, Officers Gregory Branch and Ron Gattis, Winchester police officers,

arrived at the Franklin County Jail and were told that Appellant had declined to

subm it to a strip search. Th e two officers imme diately return ed to their patrol car

to pursu e Appe llant.

After Appellant had failed to come to a complete stop at a stop sign, the

officers began to use the blue lights and siren in an attempt to cause Appellant

to pull over. Appellant then failed to stop at a second stop sign, made a

righthand turn, and threw a ball-like object out of her passenger window as she

made the turn . The o fficers fin ally stoppe d Appe llant a block and a half after the

second stop sign. Appellant was immediately placed under arrest. The ball-like

object thrown from Appellant's window, and re trieved by Officer Gattis, was a

condom containing a plastic ba g with green plant material inside. Analysis of the

conten ts of the plastic bag by the Ten nesse e Bure au of Inve stigation (T BI) crime

lab in Chatta nooga tested po sitive for ma rijuana w ith a total weight of 4.5 grams.

On July 6, 1994, a F ranklin Coun ty grand jury issued a four-count

indictment against Appellant for simple possession of a Schedule VI controlled

substance in violation of Tennessee Code Annotated Section 39-17-418,

possession of drug paraphernalia in violation of Tennessee Code Annotated

Section 39-17-425, failure to stop at a stop sign in violation of Tennessee Code

Annotated Sectio n 55-8 -149, a nd eva ding a rrest in violation of Tennessee Code

Annotated Section 39-16-6 03. On February 27, 1995, a Fran klin Co unty C ircuit

Court jury convicted Appellant of simple possession of a Schedule VI controlled

substance, failure to stop a t a stop sign, a nd eva ding a rrest. T he trial c ourt he ld

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a sentencing hearing immediately following the rendition of the verdict. Appellant

was sentenced to eleven months and nineteen days of probation to be effective

after service of ten days in the Franklin County Jail, $250 fine, and 100 hours of

comm unity service on the convic tion for s imple posse ssion; a concurrent term of

eleven months and twenty-nine days of probation on the conviction for evading

arrest; and thirty days of probation on the conviction for failure to stop at a stop

sign.

II. ILLEGAL ARREST: MOTION TO DISMISS

Appe llant's first contention on this direct appeal is that the trial court erred

in overruling her motion to dismiss, which was based on Appellant's assertion

that her arrest was pretextual and, therefore, illegal. This contention is without

merit.

Appellant incorrectly asserts that because she was unlawfully arrested,

then the trial cour t should h ave gran ted her m otion to dis miss th e indictme nt.

However, dismissal of the indictment is not, under these circumstances, the

proper remedy for an allegedly u nlawful arre st. See S tate v. Sm ith, 787 S.W.2d

34, 35 (Tenn. Crim. App. 1989). In State v. Smith , this Court held that the

remedy for an illegal a rrest typically is not dismissal of the indictment but that

evidence seized as the result of an illegal arrest should be suppressed. 787

S.W.2d 35.

Thus, the proper inquiry is whether the marijuana thrown from A ppella nt's

van should be suppressed as the product of an illegal sto p or arres t. Appellant

asserts that Officers Branch and G attis poss essed an "illegitima te motiva tion" to

stop her in that the officers had m ade th e dec ision to arrest A ppella nt while still

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at the Fra nklin C ounty Jail. W e must therefore address whether a pretextual stop

by police mandates suppression of contraband discovered as a result of the stop.

The Fourth Amendment guara ntees that the peop le have the right "to be

secure in their p erson s, hou ses, p apers , and e ffects, a gains t unrea sona ble

searches and seizures. . . ." The Fourth Amen dme nt furthe r requir es tha t all

warran ts must iss ue bas ed upo n proba ble caus e. U.S. C onst. Amend. 4.

Howeve r, the courts have recognized certain exceptions to the warrant

requirem ent. Thou gh no w arrant is req uired in ord er for officers to stop an

automobile, "An automobile stop is. . . subject to the constitutional imperative that

it not be `unreasonable' under the circumstances. As a general matter, the

decision to stop an automobile is reaso nable where the po lice ha ve pro bable

cause to believe th at a traffic violatio n has o ccurred ." Wh ren v. Un ited States,

___ U.S. ___, 116 S.Ct. 1769, 1772, 135 L.Ed. 2d 89 (1996). In Whren, Justice

Scalia, writing for the Court, explained that the Constitution strictly forbids

selective enforcem ent of any of its provisions based up on imperm issible

considerations, such as race. Id. at 1774. However, the Court further stated that

the subjective motivations of the individual officer d o not in validate the offic er's

conduct so long as that conduct is objectively ju stified. Id. (citing Scott v. United

States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)).

"Subjective intentions play no role in ordinary, probable-cau se Fou rth

Ame ndme nt analysis ." Whren, 116 S. Ct. at 1774.

Under the federal Constitution and United States Supreme Court decisions

construing the Fourth A mendm ent, the subjective motivations of Officers Branch

and Gattis did not invalidate the arrest of Appellant. Officers Branch and G attis

followed Appellant and plainly saw her fail to stop at two stop signs. Thus, the

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officers had probable ca use to believe tha t a misdem eanor had been com mitted--

failing to stop at two stop signs--an d that Ap pellant ha d com mitted it.

W e next address the issue of whether the Tennessee Constitution affords

any greater protection in the context of a pretextual stop to an individual under

arrest than does the federal Constitution. Article I Section 7 provides:

That the pe ople s hall be secure in their persons, houses,
papers and possessions, from unreasonable searches and
seizures; and that general warrants, whereby an officer may
be commanded to search suspected places, without evidence
of the fact com mitted, or to seize any person or persons not
named, whose offenses are not particularly described and
supported by evidence, are dangerous to liberty and ought
not to be granted.

Under prior Ten nesse e case law, the inq uiry into whethe r or not a particular stop

was pretextual focused upon the individual state of mind and motivations of the

police officer and required the Court to decide whether the officer would have

made the seizure e ven abs ent the illegitim ate mo tivation. State of Tenne ssee v.

Sidney Will iams, Ivory D. Jones, and Roy Kittles, C.C.A. No. 173 1, 8 (Tenn.

Crim. App. at K noxville, April 30, 1991). However, this line of cases was

predicated upon an apparent misinterpretation of federal constitutional law. More

recent cases of this C ourt have concluded that the analysis enunciated in Whren

is the appropriate framework for considering pretextual stops under the

Tennessee Constitu tion. See, e.g., State v. D avey Joe Vin eyard and Jimmy Lee

Cockbu rn, C.C.A. No. 03C01-9502-CR-00052 & No. 03C01-9502-CR-00053

(Tenn. Crim. A pp. July 18 , 1996), perm. to appeal granted, 03SO1-9612-CR-

00120 (December 9, 1996). In Vineyard, we aband oned the su bjective inquiry

into the po lice offic er's individual state of mind and, instead, adopted Whren's

objective analysis as the approp riate fram ework u nder wh ich to evalu ate

allegations of pretextu al stops. Id. at 5. Although the Tennessee Supreme Court

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has granted permis sion to appeal in the Vineyard case , to date , it is this C ourt's

belief that the state constitution affords no more extensive protection in the

context of a pretextual stop than does the federal Constitution.

Finally, it appears that suppression of evidence is not warranted since

Appellant abandoned the condom containing marijuana when she threw it out her

passenger window. In California v. Hoda ri D., the United States Sup reme C ourt

addressed the que stion of "wh ether, at th e time he dropped the drugs, Hod ari

had been `seize d' within the meaning of the Fourth Amendment." 499 U.S. 621,

111 S.Ct. 1547, 1549, 113 L.Ed.2d 690 (1991). Justice Scalia, speaking for the

Court, concluded that the cocaine abandoned by the accused while running from

police officers "was not the fruit of a seizure" and that the accused 's motion to

suppress the cocaine was, ther efore, pro perly den ied. 111 S .Ct. at 1552 (199 1).

The facts of the case sub judice are analo gous to those of Hodari.

Appellant had not yet be en seize d within the mean ing of the F ourth Amendment

at the time that she cast the marijuana out the window of her van. Rather, she

had aband oned the pro perty a nd, the refore , had n o reas onab le expe ctation of

privacy with respe ct to it. See B olen v. Sta te, 544 S.W.2d 918, 920 (Tenn. Crim.

App. 1976) (indicating that an individual does no t have a reasonable expectation

of privacy in ab andon ed prop erty).W e, therefore, conclu de that the trial court

prope rly denied Appellant's motion to dism iss the indictm ent an d corre ctly

admitte d the m arijuana in to eviden ce aga inst App ellant.

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 III. OFFICER'S TESTIMONY REGARDING AFFIDAVIT OF COMPLAINT

Appe llant's seco nd co ntentio n is tha t the trial court e rred in permitting

Officer Branch to testify on redirect concerning the limited purposes for which an

affidavit of complaint is prepared. We disagree.

Though the Tennessee Rules of Evidence are wholly silent as to the scope

of redirect examination of a witness, Tennessee law is well-settled that redirect

examination can broach topics raised on cross-examination even though those

matters were no t inquired into on d irect exam ination. N EIL P. C OHEN, ET AL.,

T ENNESSEE L AW OF E VIDENCE § 611.5 2nd ed. (1990). Indeed, in Austin v. C ity

of Mem phis, the court e xplained , "One o f the legitimate purposes of redirect

examination is to clear up confu sion of the witness , and redirect exa mination

rests largely in the discretion of the trial judge." 684 S.W.2d 624 (Tenn. Ct. App

1984) (citing Yellow Bus L ine v. Brenner, 213 S.W.2d 626, 632 (Tenn. Ct. App.

1948)).

During cross -exam ination, Appellant's attorney propounded a series of

questions to Officer Branch regardin g the office r's sworn affidavit of com plaint.

One such question posed to Officer Branch by Appellant's counsel was why

Officer Branch would not have d esired to inclu de as man y details as po ssible in

the affidavit. The Assistant District Attorney General then objected to this line of

questioning and c orrect ly conte nded that an affidavit o f com plaint n eed o nly

establish probable cause to justify the issuance of the arrest warrant and is not

required to include every detail of information in the possession of the police.

Appe llant's counsel then questioned the accuracy of Officer Branch's use of the

word "patrol" in the affidavit to describe the officer's actions at the time when the

officer first saw Appellant. On redirect examination, the court permitted Officer

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Branch to respond to the State's question s regarding his understanding of the

limited pu rpose o f an affidavit o f comp laint.

This line of que stioning w as prop er to afford Officer Br anch a n oppo rtunity

to explain the rea son fo r his bre vity in the affidavit, to which Appellant's counsel

referred during cro ss-exam ination. T he trial cou rt, therefore , did not err in

permitting the State to engage in this line of questioning.

IV. SENTENCING

Appe llant's final contention on this direct appeal is that the trial court failed

to comply with the provisions of Tennessee Code Ann. §§ 40-35-101 et seq.

Specifically, Appellant asserts that becau se the trial co urt negle cted to make any

of the findings requ ired by Te nn. Code Ann. § 40-35-103, the imposition of ten

days of incarceration did n ot comply with the Criminal Se ntencing R eform Act of

1989. In sup port of th is asse rtion, A ppellant argue s that s he is a favora ble

candid ate for probation because she was convicted of three misdemeanors and

because she is a first-time offender. When an appeal challenges the length,

range, or manner of service of a sentence, this Court conducts a de novo review

with a presu mption that the determination of the trial court was correct. Tenn.

Code Ann. § 40-35 -401( d) (199 0). Ho weve r, this presu mptio n of co rrectn ess is

“conditioned upon the affirm ative showing tha t the trial court in the record

considered the se ntenc ing prin ciples and a ll relevant fac ts and circu mstan ces.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the reco rd

fails to dem onstra te suc h con sidera tion, rev iew of th e sen tence is purely de novo.

Id. If appellate review reflects tha t the trial court prope rly cons idered all relevant

factors and its findings of fact are adequately supported by the record, this Cou rt

must affirm the s entenc e. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

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App. 1991). In conducting a review, this Court must consider the evidence, the

presentence report, the sentencing principles, the arguments of counsel, the

nature and ch aracter o f the offens e, mitigating and enhancement factors, any

statem ents made by the defendant, and the potential for rehabilitation or

treatme nt. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The

defendant bears the burden of showing the impropriety of the sentence imposed.

State v. Grego ry, 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).

A misde mean ant is not e ntitled to the presumption of a minimum sentence.

State v. Creasy, 885 S.W .2d 829 (Te nn. Crim. Ap p. 1994). Furthe r,

misdemeanor sentences do not contain ranges of punishments, and a

misdemeanor defendant may be sentenced to the maximum term provided for

the offense as long as the sentence imposed is consistent with the purposes of

the senten cing act. State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). Our

statutory system pertaining to misdemeanor sentencing is designed to provide

trial courts with continuing jurisdiction and a great d eal of flexibility. State v.

Boyd, 925 S.W .2d 237, 244 (Tenn. Crim . App. 1995 ).

A criminal defendant seeking full probation bears the burden on appeal of

showing the sentence actually imposed is improper, and that full probation will be

in both the best interest of the defend ant and the pub lic. State v. Bingham, 910

S.W.2d 448, 456 (Tenn. Crim. App. 1995). Although not controlling of the

discretion of the sentencin g court, the following fac tors shou ld be c onsid ered in

determining the appropriateness of probation:

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 (1) The nature and characteristics of the crime, under Tenn. Code

Ann. § 40-3 5-210(b)(4) (S upp. 1996 );

(2) the defendant’s potential for rehabilitation, under Tenn. Code

Ann. § 40-3 5-103(5) (199 0);

(3) whether full probation would “u nduly de preciate the seriousness

of the offens e,” unde r Tenn . Code Ann. § 40-35-103 (1)(B) (1990);

and

(4) wheth er a se ntenc e of full probation would “provide an effective

deterrent,” unde r Tenn. Co de Ann. § 4 0-35-103(1 )(B) (1990).

Although, the trial judge in the instant case failed to state on the rec ord his

reasons for ordering incarceration for ten (10) days as the result of the drug

possession charge, we find su ch a sh ort inca rcerat ive per iod to b e reas onab le

given the fact that Appellant apparently possessed marijuana in an aborted

attempt to smuggle it into the Franklin County Jail. Given the seriousness of the

problem of drugs in correctional facilities, we find a denial of fu ll probation to be

appropriate.

Accord ingly, the jud gmen t of the trial cou rt is affirmed .

____________________________________
JERRY L. SMITH, JUDGE

CONCUR:

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___________________________________
DAVID G. HAYES, JUDGE

___________________________________
WILLIAM S. RUSSELL, SPECIAL JUDGE

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