IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1997 SESSION
FILED
September 17, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) NO. 02C01-9612-CC-00480
)
Appellee ) MADISON COUNTY
)
V. ) HON. WHIT LAFON, JUDGE
)
CARL ALEXANDER COLE, ) (Sale of Cocaine and Sentencing)
)
Appellant )
)
FOR THE APPELLANT FOR THE APPELLEE
Clifford K. McGown, Jr. John Knox Walkup
113 North Court Square Attorney General and Reporter
Waverly, Tennessee 37185 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
George Morton Googe
District Public Defender Elizabeth T. Ryan
227 West Baltimore Street Assistant Attorney General
Jackson, Tennessee 38301 450 James Robertson Parkway
Nashville, Tennessee 37243-0493
Jeffrey J. Mueller
Assistant Public Defender James G. Woodall
227 West Baltimore Street District Attorney General
Jackson, Tennessee 38301 225 Martin Luther King Drive
Jackson, Tennessee 38302-2825
Shaun A. Brown
Assistant District Attorney General
225 Martin Luther King Drive
Jackson, Tennessee 38302-2825
OPINION FILED:______
AFFIRMED
William M. Barker, Judge
Opinion
The Appellant, Carl Alexander Cole, appeals as of right his conviction and
sentence for the sale of more than 0.5 grams of cocaine. He argues on appeal that:
(1) The trial court erred in refusing to permit him to develop proof
concerning policies and procedures with regard to the use of informants
in undercover drug purchases and in refusing his request to make an
offer of proof.
(2) The trial court erred in refusing to permit him to question the
confidential informant about the informant’s background and
employment history.
(3) The sentence imposed by the trial court was excessive and the
trial court erred by not sentencing him to an alternative sentence, such
as the community correction program.
We have reviewed the record on appeal and find no merit to the Appellant’s argument.
We affirm.
Factual Background
On May 18, 1994, around 10:30 p.m., officers Penney and Mills met a
confidential informant at a cemetery on Paul Coffman Drive in Jackson to arrange an
undercover drug purchase. Officer Penney equipped the informant with a hidden
radio transmitter to enable the officers to listen to the drug transaction and gave him
$100.00 to buy drugs.
The confidential informant, followed by the officers, went to a house on the
northeast corner of Hays and Eden Streets and knocked on the door. When the door
opened, the informant asked for the Appellant and was told to go to an alley off of
Eden Street. The informant got back into his car and drove down Eden Street. He
pulled into the designated alley where the Appellant got into his car and sold him five
white rocks presumed to be crack cocaine for $100.00. When the transaction was
concluded, the informant left the Eden Street alley and met the police officers back at
the cemetery. The substance was later analyzed by the Tennessee Bureau of
Investigation’s Crime Laboratory and it was confirmed that it contained cocaine.
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On May 19, 1996, after a jury trial, the Appellant was found guilty of the sale of
more than 0.5 grams of cocaine. At a later sentencing hearing, the trial court
sentenced him to ten years imprisonment in the Tennessee Department of Correction
to be served consecutively to a prior unserved sentence. The Appellant now appeals.
I
The Appellant first argues that the trial court erred by refusing to permit him to
develop proof concerning policies and procedures with regard to the use of informants
in undercover drug purchases and in refusing his request to make an offer of proof.
This issue is without merit.
According to the Appellant’s theory, the outcome of his case depended on
whether the jury believed the testimony of Dwayne Yarbrough, the informant in this
case, regarding the drug transaction. Consequently, the Appellant sought to discredit
the informant’s testimony by asking Officer Penney what qualities the police looked for
in confidential informants and what qualities the police had considered when
Yarbrough was hired. The trial court, however, only permitted testimony with regard to
general police policy on confidential informant hiring. It excluded all information
pertaining to what the police had considered when they hired this informant because
Officer Penney testified that he had not hired Yarbrough and, therefore, had no
personal knowledge of what those considerations were.
The Appellant argues that the trial court violated his right to cross-examine
officer Penney. We cannot agree with the Appellant. In Tennessee, “[a] witness may
not testify to a matter unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter.” Tenn. R. Evid. 602. Here, it was
undisputed that Officer Penney had no personal knowledge of what was considered
with regard to the confidential informant’s hiring. Thus, the trial court correctly
excluded the disputed testimony.
The Appellant also attempted to question Officer Penney regarding what factors
he had considered when he hired confidential informants in other unrelated cases.
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The trial court excluded the line of questions stating that such information was
irrelevant. We agree with the trial court. See Tenn. R. Evid. 401. What qualifications
Officer Penney had considered for confidential informants in other unrelated cases
had no significance here.
The Appellant also argues that the trial court refused to allow him to make an
offer of proof of the excluded testimony. It is correct that the trial court refused to
allow the Appellant to make an offer of proof while both parties were still presenting
their proof. However, the trial court also told the Appellant: “I’m going to let you put
the proof in after the case is over.” The trial court did not refuse to allow the Appellant
to offer proof into the record; the trial court merely asked the Appellant to wait until the
trial was concluded. The record does not show that the Appellant sought to make an
offer of proof after the evidence was taken.
II
The Appellant next argues that trial court erred in refusing to permit him to
question the confidential informant about the informant’s background and employment
history. This issue is without merit.
The Appellant’s counsel conducted extensive cross-examination of the
informant. The informant admitted that he had used drugs in high school and that he
had been involved in more than fifty undercover drug purchases, earning between
$50.00 and $100.00 for each drug purchase. He said he was doing undercover work
partly to earn money and partly because his brother had been a drug abuser and that
he wanted to make a difference in society. The only cross-examination the trial court
did not permit was where the informant lived and worked at the time of the trial. We
find that the trial court correctly excluded that testimony. Where the informant lived
and worked two years after the undercover drug purchase occurred was irrelevant to
the Appellant’s trial on the merits. See Tenn. R. Evid. 401; Tenn. R. Evid. 402.
Moreover, to disclose such information in a public forum would not be prudent
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because the informant was under partial police protection from vengeful drug dealers
who had been caught as a result of the informant’s undercover activities.
The Appellant also argues that the trial court improperly commented on the
informant’s credibility. The complained-about comment was after the following
question and answer:
Q: How much money do you believe you’ve made off your
work for the drug task force?
A: I can’t recall.
The Court: Say’s he don’t know.
Even though the trial court should have refrained from interjecting comments into the
Appellant’s cross-examination, we do not find that these comments had any effect on
the informant’s credibility or affected the result of the trial on the merits. See Tenn. R.
Crim. P. 52(a); see also State v. Gregg, 874 S.W.2d 643 (Tenn. Crim. App. 1993).
The error, if any, was harmless.
III
The Appellant finally argues that the sentence imposed by the trial court was
excessive and that the trial court erred by not sentencing him to an alternative
sentence, such as the community correction program. Both issues are without merit.
When an Appellant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)
(1990). The burden of showing that the sentence is improper is upon the appealing
party. Id Sentencing Commission Comments. This presumption, however, is
conditioned upon an affirmative showing in the record that the trial court considered
the sentencing principles and all relevant facts and circumstances. State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).
The Appellant first argues that he was presumed eligible for alternative
sentencing pursuant to Tennessee Code Annotated § 40-35-102. The statute
provides that standard offenders convicted of Class C, D, or E felonies are presumed
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favorable candidates for alternative sentencing. The Appellant was convicted of a
Class B felony and is not presumed a favorable candidate for alternative sentencing.
The sentence range for sale of cocaine for a Range I offender is eight to twelve
years. The trial court sentenced the Appellant to ten years imprisonment. We agree
with the trial court’s judgment.
Two enhancement factors are applicable to the Appellant. We find that he has
a history of criminal convictions and criminal behavior. See Tenn. Code Ann. § 40-35-
114(1) (Supp. 1996). The Appellant’s extensive criminal record includes one
vandalism conviction, one inciting to riot conviction, one resisting arrest conviction,
four driving on a revoked licence convictions, one carrying a prohibited weapon
conviction, and two grand larceny convictions. The Appellant has also shown a history
of unwillingness to comply with conditions of release into the community in that he has
failed to pay fines and court costs in prior cases and has failed to perform required
community service work. See Tenn. Code Ann. § 40-35-114(8).
The Appellant argues that the trial court should have considered, as a
mitigating factor, that his conduct neither caused nor threatened serious bodily injury
to anybody. See Tenn. Code Ann. § 40-35-113(1), (9) (1990). However, when the
sale of drugs to the public is involved, this mitigating factor does not carry much
weight. State v. Mann, No. 02C01-9504-CC-00101 (Tenn. Crim. App., Jackson, Oct.
18, 1995), permission to appeal denied (April 1, 1996).
We affirm the Appellant’s conviction and sentence.
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__________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
__________________________
JOSEPH M. TIPTON, JUDGE
__________________________
DAVID G. HAYES, JUDGE
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