State of Tennessee v. Catherine Ward

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
February 2, 1996
AT NASHVILLE
Cecil W. Crowson
NOVEMBER 1993 SESSION Appellate Court Clerk

STATE OF TENNESSEE, )
) No. 01C01-9307-CC-00224
Appellee, )
) Williamson County
v. )
) Hon. Henry Denmark Bell, Judge
CATHERINE WARD, )
) (Promoting Prostitution)
Appellant. )

For the Appellant: For the Appellee:

David L. Raybin Charles W. Burson
Attorney at Law Attorney General & Reporter
424 Church Street, 22nd Floor
Nashville, TN 37219 Christina S. Shevalier
(Appeal Only) Assistant Attorney General
450 James Robertson Parkway
R. Ray Galbreath Nashville, TN 37243-0493
Attorney at Law
901 Stahlman Building Joseph D. Baugh
Nashville, TN 37201 District Attorney General
(Trial Only)
Timothy L. Easter
Asst. District Attorney
General
Post Office Box 937
Franklin, TN 37065

OPINION FILED:____________________________________

REVERSED & REMANDED

Penny J. White
Judge
 O P I N I O N

Appellant, Catherine Ward, was convicted of promoting

prostitution, a Class E felony, by a jury. The trial court found

that appellant was a standard offender and imposed a Range I

sentence consisting of a fine of $3,000 and confinement for one

year in the Department of Correction.

Appellant presents seven issues for review. She contends

that:

1. the state failed to prove that
appellant was knowingly promoting
prostitution and that the conduct
constituted sexual activity within
the meaning of the statute;

2. the trial court abused its
discretion in permitting a
prosecution witness to testify that
two prostitutes entered guilty pleas
in violation of Tennessee Rules of
Evidence 803(22);

3. the trial court abused its
discretion in permitting a
prosecution witness to testify that
a prostitute told her that appellant
was her "boss";

4. the search of appellant's purse and
motor vehicle violated the Fourth
Amendment to the United States
Constitution and Article 1, § 7 of
the Tennessee Constitution;

5. the trial court abused its
discretion in permitting a Davidson
County officer to testify to the
results of his investigation into
the prostitution business in
Davidson County;

6. she was denied her constitutional
right to the effective assistance of
counsel by trial counsel; and

7. the trial court committed error in
refusing to suspend appellant's
sentence and grant her probation.

After a careful review of the record, we find that the

glaring deficiencies of trial counsel denied appellant her

2
constitutional right to a fair trial. Appellant's conviction must

be reversed and the case remanded for a new trial.

In view of our holding, we will discuss issues 2, 3, 4,

5, and 6 in connection with the ineffective assistance of counsel.

Since the case is being remanded for new trial, we need not

consider whether the trial court erred by sentencing appellant to

serve one year in the state penitentiary rather than granting

probation or some other form of alternative sentencing.1

I. FACTS

Catherine Ward was the owner and operator of a dating and

escort service in Nashville. She had thirty-nine different

listings in the yellow pages of the Nashville phone book. Although

each listing was in a different name and had a different telephone

number, all of the thirty-nine telephone numbers reached

appellant's place of business and were answered by the same person.

In this case, on the evening of October 3, 1991, Jimmy

Hester, a detective, called Beth's Touch of Class. The telephone

number was listed in appellant's name and was answered at

appellant's place of business. The officer made arrangements for

two women to come to his room at the Hilton Hotel in Brentwood.

After several telephone calls, Sherman Ann "Sherrie" Swartz and

April Lynn Ashworth came to the room. Swartz collected the agreed

amount of $350. After undressing in the bathroom, the two women

1
We note, however, that the trial judge failed to follow the
guidelines in State v. Ashby, 823 S.W.2d 166 (Tenn. 1992). In
fact, the trial judge never considered any form of alternative
sentencing. As a Range I, standard offender, sentenced for a Class
E felony to a one-year sentence, appellant is presumed to be a
favorable candidate for alternative sentencing absent evidence to
the contrary. Tenn. Code Ann. § 40-35-102(6)(1995 Supp.). If
appellant is convicted upon retrial, the trial court should
consider the criteria for alternative sentencing found in the
statutes and should place findings on the record.

3
lay in bed facing each other. They had not touched one another

when Hester signalled officers in an adjoining room to arrest the

two women. The women were arrested, booked at the Brentwood Police

Department, and issued citations for prostitution. Agent Hester

testified that the two women later pled guilty to prostitution, a

misdemeanor offense.2

Later that night, Mary McGaughy, a detective who

participated in the sting, saw Swartz in the parking lot of the

Hilton Hotel. Swartz was standing beside a car talking to the

driver. When McGaughy asked Swartz what she was doing, Swartz told

her that she was talking to her boss. McGaughy told Swartz to

leave the parking lot. McGaughy learned that appellant was the

driver of the motor vehicle. She retained appellant's driver's

license until she informed the Brentwood police officers who were

participating in the investigation. An officer searched

appellant's purse and seized a pager, an address book, a quantity

of cash, and appellant's business cards. A search of the interior

and trunk of the vehicle uncovered nothing of interest. Appellant

was arrested and charged with promoting prostitution.

Over objection, Sergeant Joe Blakley of the Metropolitan

Police Department testified at length concerning his involvement in

a state-wide task-force investigating prostitution. He also

detailed the results of a search he conducted at appellant's

business address approximately one year prior to appellant's arrest

2
Only Agent Hester testified to these events. The person with
whom he spoke at Beth's Touch of Class was never identified. The
second woman who returned his calls was identified only as
"Crystal." She did not testify. Neither Swartz nor Ashworth
testified at trial. The state entered a video tape made while
Swartz and Ashworth were in the hotel room into evidence. (The
camera was disguised as a lamp.).

4
in this case. Sergeant Blakley observed the Swartz and Ashworth

arrest but did not observe the arrest or search of appellant.

Appellant described her business as "legitimate." A

written agreement which she had with each person who worked for her

designated the person as an independent contractor, not an

employee, and provided that the person would not engage in any

illegal conduct. The women she employed were engaged to escort men

to parties, dinners, and other social events and to provide

conversation and companionship. Occasionally, the women acted as

models. On the night of the arrests, appellant was advised that

Swartz and Ashworth escorted a man to a dinner party at the Hilton.

When Swartz and Ashworth failed to check in with the dispatcher and

did not respond to their pagers, appellant was notified. She then

went to the hotel to see if they needed assistance. Her arrest

followed.

II. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

When an accused challenges the sufficiency of the

convicting evidence, this court must review the record to determine

if the evidence adduced at the trial is sufficient "to support the

finding by the trier of fact of guilt beyond a reasonable doubt."

Tenn. R. App. P. 13(e). This rule is applicable to findings of

guilt based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Dykes,

803 S.W.2d 250, 253 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1990).

In determining the sufficiency of the evidence, this

court does not reweigh or reevaluate the evidence. State v.

5
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court

substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 286 S.W.2d 856, 859

(Tenn. 1956). To the contrary, this court is required to afford

the State of Tennessee the strongest legitimate view of the

evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State

v. Cabbage, 571 S.W.2d at 835.

Questions concerning the credibility of witnesses, the

weight and value to be given the evidence, as well as all factual

issues raised by the evidence are resolved by the trier of fact,

not this court. Id. In State v. Grace, 493 S.W.2d 474 (Tenn.

1973), our Supreme Court said: "A guilty verdict by the jury,

approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the

theory of the State." State v. Grace, 493 S.W.2d at 476.

Since a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, id.,

appellant has the burden of illustrating why the evidence contained

in the record is insufficient to support the verdicts returned by

the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). This court will not disturb a verdict of guilt due to the

sufficiency of the 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 accused guilty beyond a reasonable doubt. State v.

Tuggle, 639 S.W.2d at 914.

6
 In this case, the evidence contained in the record is

sufficient to support a finding by a rational trier of fact that

appellant was guilty of promoting prostitution beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,

(1979). Agent Hester called the business admittedly owned by

appellant and spoke to a "dispatcher." "Crystal" returned his

call. When the agent requested two women, Crystal said she did not

know what to charge but she said she would find out and call Hester

back with a price. The dispatcher in turn called Hester, advised

him that the woman who called him was not comfortable doing what

Hester wanted, and that the company was trying to find two "girls"

who would meet his requirements.3 Later, Swartz and Ashworth

appeared at Hester's room. Hester paid Swartz for the services to

be performed, the two women undressed, and climbed into bed.

Appellant admitted that she was the sole owner and

proprietor of Beth's Touch of Class, one of the thirty-nine

entities that comprised the escort service. When a "gentleman"

called any of the thirty-nine numbers, the call reached the same

dispatcher. On October 3, 1991, the fees charged were $120 for a

half hour and $175 for a full hour of one girl's time, and Hester

paid the two women a total of $350. Although the women never

engaged in any sexual acts with each other or with Hester, their

activities certainly support an inference that they were about to

engage in sexual activity and that the escort service was aware of

that activity. When all of the evidence presented at trial is

3
Neither the dispatcher nor the officer made specific
reference to any sexual activity. However, the circumstances and
the double entendres contained in the conversations are sufficient
to support the inference that Hester was seeking to watch two
"girls" perform lesbian sex.

7
considered, the evidence is sufficient to support appellant's

conviction for promoting prostitution beyond a reasonable doubt.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

After her conviction, appellant obtained new counsel. In

a motion for new trial, counsel contended that, among other errors,

appellant had been denied effective assistance of counsel at trial

because of the following deficiencies in representation:

1. the failure to file a pretrial
motion to suppress as evidence a
pager, address book, business cards,
and approximately $787 in cash,
which were obtained from appellant's
purse by a Brentwood police officer;

2. the failure to object to Jimmy
Hester's testimony that the two
women who came to the hotel on the
evening in question had been
convicted of prostitution following
their guilty pleas to the offense;

3. the failure to object to the
testimony of Mary McGaughy that
Sherman Ann "Sherrie" Swartz told
her that she was talking to her
"boss" while standing next to
appellant's motor vehicle;

4. the failure to object to the
testimony given by Sergeant Joe
Blakley of the Metropolitan Police
Department; and

5. the failure to move the trial court
pretrial for an instruction on the
punishment for the principle offense
alleged in the presentment and the
lesser included offense.

The trial judge found that while some of the testimony

complained of should have been excluded, the erroneously admitted

evidence was harmless in the context of appellant's trial. The

judge concluded that defense counsel's actions or failure to act

had been consistent with the defense theory that appellant was

engaged in a legitimate business and that any wrongdoing had been

8
committed by Swartz and Ashworth without her knowledge or

encouragement. Therefore, the court concluded that appellant was

not denied effective assistance of counsel. We respectfully

disagree.

1. LEGAL STANDARDS

When there is a post-trial hearing on the issue of

whether the accused was denied the effective assistance of counsel,

the findings of fact made by the trial court at the conclusion of

the hearing have the weight of a jury verdict. Consequently, this

court is bound by the trial court's findings of fact unless the

evidence contained in the record preponderates against the judgment

entered by the trial court.4

Since the trial court found that appellant failed to

establish she was entitled to a new trial on this ground, this

court must review the record to determine whether the trial

court's findings of fact preponderate against the judgment entered

in this case.5 In doing so, this court is bound by certain well-

established rules governing appellate review.

First, this Court cannot reweigh or reevaluate
the evidence; nor can we substitute our
inferences for those drawn by the trial judge.
Second, questions concerning the credibility
of the witnesses, the weight and value to be
given their testimony, and the factual issues
raised by the evidence are resolved by the
trial judge, not this Court. Third, appellant
has the burden in this Court of illustrating
why the evidence contained in the record

4
Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v.
State, 789 S.W.2d 898, 899 (Tenn. 1990); Bankston v. State, 815
S.W.2d 213, 215 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.
1991).
5
Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1990); Brooks v. State, 756 S.W.2d 288,
290 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1988);
Vermilye v. State, 754 S.W.2d 82, 84 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1987).

9
 preponderates against the judgment entered by
the trial judge.

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1990).

Before an accused is entitled to a new trial on the

ground that trial counsel's representation was ineffective, the

accused must prove by a preponderance of the evidence that (a) the

services rendered or advice given by counsel fell below the "range

of competence demanded of attorneys in criminal cases,"6 and (b)

the unprofessional conduct or errors of counsel "actually had an

adverse effect on the defense."7

In determining whether the accused has factually

established a deprivation of the constitutional right to the

effective assistance of counsel, we recognize that neither the

State nor Federal Constitution requires perfect representation.8

Second, it is not our function to "second guess" trial counsel's

tactical and strategic choices pertaining to matters of defense

unless these choices are made without knowledge of the relevant

facts or the law applicable to the issue.9 "[T]he defense

6
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
7
Strickland v. Washington, 466 U.S. 668, 693, (1984);
Williams v. State, 599 S.W.2d 276, 279 (Tenn. Crim. App.), perm. to
appeal denied, (Tenn. 1980).
8
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Vermilye,
754 S.W.2d at 85. In State v. Martin, 627 S.W.2d 139, 143 (Tenn.
Crim. App. 1981), perm. to appeal denied, (Tenn. 1982), this court
said "[t]here are no perfect lawyers." In Cureton v. Tollett, 477
S.W.2d 233, 235 (Tenn. Crim. App. 1971), cert. denied, (Tenn.
1972), this court said: "In the course of a trial, many legal
situations occur which present choices in many directions. The
lawyer must decide which course to take. [The lawyer] is not
required to be infallible."
9
State v. Cooper, 849 S.W.2d 744, 746 (Tenn. 1993); Hellard
v. State, 629 S.W.2d at 9; Vermilye v. State, 754 S.W.2d at 85;
see also State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App.),
(continued...)

10
attorney's representation, when questioned, is not to be measured

by '20-20 hindsight.'"10 Third, an accused is not deprived of the

effective assistance of counsel because a different procedure or

strategy might have produced a different result.11 Fourth, the

entire record, not "isolated acts or omissions," must be considered

in determining whether the petitioner was adequately represented.12

As this court said in State v. Mitchell:

Protection of an accused's right to
effective assistance of counsel does not
require that his attorney's every act or
omission claimed to be deficient be examined
in isolation. The issue is whether
considering the case as a whole, including
performance by the accused, counsel provided
reasonable professional assistance. . . . As
stated in Strickland v. Washington, 'the
ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose
result is being challenged.'13

(...continued)
perm. to appeal denied, (Tenn. 1991); Sherrill v. State, 772 S.W.2d
60, 62 (Tenn. Crim. App. 1988), perm. to appeal denied, (Tenn.
1989); Smith v. State, 757 S.W.2d 14, 18 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1988); State v. Swanson, 680 S.W.2d 490
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1984); McBee v.
State, 655 S.W.2d 191, 193 (Tenn. Crim. App.), perm. to appeal
denied, (Tenn. 1983); Tolliver v. State, 629 S.W.2d 913, 914-15
(Tenn. Crim. App. 1981), perm. to appeal denied, (Tenn. 1982).
10
Hellard v. State, 629 S.W.2d at 9.
11
Tolliver v. State, 629 S.W.2d at 914-15; Williams v. State,
599 S.W.2d at 279-80. In Long v. State, this court said:

Not every mistake of judgment or misconception
of law made by defense counsel will deprive
the accused of his constitutional right to
effective representation, nor is the accused
deprived of such right because a different
procedure or strategy upon the part of counsel
might have produced a different result.

Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied,
(Tenn. 1974)(citations omitted).
12
State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App.),
perm. to appeal denied, (Tenn. 1988); Long v. State, 510 S.W.2d at
88.
13
753 S.W.2d at 149 (citations omitted).

11
Fifth, there is "a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance

. . . ."14 Thus, petitioner must overcome "the presumption that,

under the circumstances, the challenged action 'might be considered

sound trial strategy.'"15

2. FAILURE TO FILE MOTION TO SUPPRESS

Appellant argues that Lieutenant Jones, the coordinator

of this undercover operation, arrested her while searching her

purse. She contends that trial counsel was ineffective in failing

to seek suppression of this evidence. The state argues that

appellant was arrested before Jones searched the purse and vehicle.

In the alternative, the state argues that this evidence, consistent

with the operation of a legal dating service, was not prejudicial

to appellant.

Since no motion to suppress was filed, and consequently

no hearing conducted, the facts surrounding the search and seizure

are sketchy. It is impossible for us to say without question that

the evidence should have been suppressed. It is clear, however,

that defense counsel should have filed a motion to suppress. The

officers had no search warrant. No exigent circumstances are

apparent. Therefore, the timing of the arrest and the basis for

the arrest are critical to the legitimacy of the search. A more

fully developed record of the circumstances surrounding the search

would have allowed an analysis of the suppression issue.

14
Strickland v. Washington, 466 U.S. at 689.
15
Strickland v. Washington, 466 U.S. at 689. As the United
States Supreme Court said in Strickland: "There are countless ways
to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in
the same way." Id.

12
 Appellant has the obligation of proving the elements of

ineffective assistance of counsel. McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Thus, appellant would have to

establish that counsel was deficient in failing to file the motion,

and that, the failure prejudiced appellant. At the post-conviction

hearing, appellant should have offered the evidence which would

have been offered had a suppression motion been filed. We could

have before us a record sufficient to enable us to consider whether

the failure to file the motion prejudiced appellant. On this

insufficient record, however, we cannot conclude that the failure

to file a motion to suppress was a deficiency on the part of

counsel or that it prejudiced appellant in this case.

3. FAILURE TO OBJECT TO EVIDENCE ON CONVICTIONS

During the direct examination of Agent Jimmy Hester, the

following colloquy occurred:

Q. [Were] Swartz and Ashworth
. . . arrested for prostitution that
night?

A. Yes, sir. They were issued
citations and they were taken to the
Brentwood Police Department and
fingerprinted and photographed,
interviewed and then issued a
citation.

Q. And subsequently those two pled
guilty to that charge; did they not?

A. Yes, sir.

Trial counsel did not object to this testimony.

Appellant argues that "the State established one of the

elements of the offense by the hearsay convictions of the two women

when there was absolutely no opportunity for the defendant to

confront or cross-examine these two women as to why they 'plead

13
guilty' to prostitution." She further argues that this evidence

was "devastating against the defense" and cannot be considered

harmless in the context of this case. The trial judge found and

the state acknowledges that the admission of this evidence violated

the Tennessee Rules of Evidence. However, the state argues that

the admission of this evidence was harmless because there "was

ample proof presented at trial that the sole reason the two women

were in the hotel room was to engage in prostitution."

This evidence was hearsay. It is not admissible as an

exception under Tennessee Rules of Evidence 803(22).16 Further,

since testimony was the only direct evidence of the women's intent

to engage in prostitution, it was not harmless. Since neither

woman testified at trial, appellant could not confront or cross-

examine the witnesses. The admission was error and prejudiced

appellant.

Although not directly addressed in this appeal, we are

compelled to address other parts of Hester's testimony since it may

well arise upon retrial.17 Agent Hester related numerous statements

made during his conversations with the "dispatcher," "Crystal," and

16
That rule provides:

Judgment of Previous Conviction. -- Evidence
of a final judgment adjudging a person guilty
of a crime punishable by death or imprisonment
in excess of one year to prove any fact
essential to sustain the judgment, but not
including, when offered by the prosecution in
a criminal case for purposes of other than
impeachment, judgments against persons other
than the accused. The pendency of an appeal
may be shown but does not affect
admissibility.
17
This issue, which concerns the admissibility of the
statements made by the dispatcher, "Crystal," Swartz, and Ashworth,
was raised in appellant's motion for new trial. It was overruled
without explanation in the trial judge's order.

14
the two women who came to the hotel room. Nearly all were

introduced for "the truth of the matter asserted" and are

statements, "other than one made by the declarant while testifying

at the trial or hearing." Tenn. R. Evid. 801(c). Unless an

exception to the hearsay rule is available, such statements are not

admissible. Defense counsel objected at one point and the trial

judge agreed that the testimony was hearsay. After a brief jury-

out discussion with counsel, the trial judge decided to admit the

testimony so long as the prosecution "could connect it up" later.

The state justified the evidence as part of the "res gestae." The

trial judge apparently believed the evidence to be admissible as

agent statements under Rule 803 (1.2)(D).

Neither ground supports the admission of most of the

statements related by Hester. "Res gestae" is an obsolete term

often inaccurately applied to excited utterances.18 The Tennessee

Rules of Evidence contain no "res gestae" exception.19 Further,

Rule 803(1.2)(D), of limited applicability in criminal cases,

applies only when the employees are acting within the scope of

their employment and when the statements are against the interest

of the employees as well as the employer. Since the testimony does

not qualify as either an excited utterance or an admission, it was

inadmissible. Much of the testimony should have been excluded.

4. FAILURE TO OBJECT TO HEARSAY STATEMENTS

Agent McGaughy testified without objection to a statement

identifying appellant as Swartz's boss. Appellant contends, and

the state agrees, that the statement attributed to Swartz was

18
See Neil P. Cohen, Donald F. Paine, Sarah Y. Sheppeard,
Tennessee Law of Evidence § 803(2) (1990).
19
State v. Smith, 868 S.W.2d 561, 576-77 (Tenn. 1993).

15
introduced to prove that appellant was Swartz's boss, i.e., the

truth of the matter. The trial judge held, however, that the

admission of the hearsay evidence was harmless since there was

ample evidence to show that an employer-employee relationship

existed between Swartz and appellant.

Here, the state argues that the evidence was an admission

admissible under Rule 803(1.2)(D).20 Whether Swartz and Ashworth

were agents or servants of appellant was a contested issue at

trial. Swartz and Ashworth executed contracts that stated that

they were independent contractors, not employees. Apparently,

appellant did not withhold payroll taxes from the women. The

viability of the admissions exception under these circumstances is

questionable. A timely objection by counsel would have required

the court to exclude this statement which served as a basis for the

state's proof of an essential element.

5. EVIDENCE OF DAVIDSON COUNTY INVESTIGATION

During the months of July through October of 1990, more

than a year prior to the incident in question, the Metropolitan

Police Department began an investigation into prostitution

trafficking in Davidson County. The investigation included the

dating and escort services listed in the yellow pages of the

20
The rule provides:

The following are not excluded by the hearsay rule:

(D) a statement by an agent or servant
concerning a matter within the scope
of the agency or employment made
during the existence of the
relationship under circumstances
qualifying the statement as one
against the declarant's interest
regardless of declarant's
availability . . . . Tenn. R. Evid.
803 (1.2).

16
Nashville telephone book. There were approximately 140 individual

telephone listings for these businesses. However, all of these

listings were to businesses operated by eight individuals.

Appellant had thirty-nine listings under separate business names.

She paid the telephone bills for all of these businesses.

Additionally, all of these telephone numbers were answered by an

individual referred to as "a dispatcher" at appellant's place of

business.

On October 11, 1990, officers executed a search warrant

at appellant's place of business in Davidson County. Several

records were confiscated from the business. The dispatcher was in

possession of a "pill." Also, Metropolitan police officers

contacted "various sources throughout Davidson County" and reviewed

"different written complaints sent in by different citizens in

Davidson County."

Trial counsel contested the relevancy of the testimony

regarding these investigations. In the motion for a new trial and

in this court, appellant contends that several portions of the

testimony were not admissible on various grounds. Each of

appellant's grounds will be addressed.

Appellant contends that the testimony regarding the 1990

investigation given by Sergeant Blakley was not relevant to the

offense of October 3, 1991 since it was too remote in time to bear

on the controverted factual issues. The term "relevant evidence"

is defined as "evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence." Tenn. R. Evid. 401. As a general rule, relevant

17
evidence is admissible. However, there are exceptions. The

evidence is not admissible if it is barred by the United States

Constitution, the Tennessee Constitution, the Tennessee Rules of

Evidence, or other rules of general application. Tenn. R. Evid.

402. Also, if the probative value of relevant evidence is

substantially outweighed by the danger of unfair prejudice, the

evidence should not be admitted. Tenn. R. Evid. 403. "Relevant

evidence" may also be excluded if the probative value of the

evidence is substantially outweighed by the danger of undue delay,

waste of time, or needless presentation of cumulative evidence.

Tenn. R. Evid. 404.

Basic to the concept of relevance is the requirement that

a lay witness have "firsthand knowledge" about the subject matter

of the witness's testimony. Tenn. R. Evid. 602. In the treatise,

Tennessee Law of Evidence, the authors state:

The personal knowledge rule of Rule
602 provides that . . . a witness is
not competent to testify about facts
unless the witness personally
perceived those facts by use of the
witness's five senses.

Neil P. Cohen, et al., Tennessee Law of Evidence § 602.1 at 2 & 3.

However, there are two exceptions to this rule. The rule does not

apply to (a) the testimony of experts, Tenn. R. Evid. 702., 703;

Adv. Comm. Comments, Tenn. R. Evid. 602, or to (b) admissions made

by a party opponent. Tenn. R. Evid. 803(1.2); Adv. Comm. Comments,

Tenn. R. Evid. 602.

A witness must have the requisite personal knowledge to

testify. Tenn. R. Evid. 602. On this record, it is difficult to

decipher whether Sergeant Blakley had personal knowledge about much

of his testimony. Undoubtedly, some of his testimony came from

18
other officers, from individuals he interviewed, from what he read

in reports, and from what he heard while listening to audio tape

recordings. While ascertaining which is which is difficult,

clearly much of the testimony was hearsay, once, twice, and three

times removed. Neither Sergeant Blakley's participation in the

investigation nor his role as lead investigator permitted him to

testify to facts outside his personal knowledge.

Sergeant Blakley candidly admitted that he never talked

with the dispatcher. Yet he testified to information gleaned from

listening to the taped conversations between the undercover

officers and the dispatcher and from what he read while reviewing

"different written complaints sent in by different citizens in

Davidson County." This testimony was inadmissible.

Despite the fact that his knowledge of the operation of

the escort services was based primarily upon hearsay, Sergeant

Blakley testified as to the operations, the role of the dispatcher,

and the questions asked by the dispatcher. He testified regarding

the lease and purpose of an apartment and visitors to the apartment

despite his lack of personal knowledge.

Defense counsel should have challenged Sergeant Blakley's

testimony because of his lack of personal knowledge. At the least,

counsel should have voir dired the witness to ascertain which, if

any, information was based on personal knowledge and which was

obtained from other sources. Counsel's failure to do so resulted

in the admission of highly prejudicial, largely inadmissible

testimony.

Additionally, although Sergeant Blakley was not qualified

as an expert witness, he was permitted to express his opinion

19
regarding the nature of the escort service business. The following

colloquy took place during Blakley's direct examination:

Q. During your investigation did you
learn how these operations [escort
services] worked?

A. Yes, sir. During the course of the
operations or this investigation in
the preliminary stages we did
contact various sources throughout
Davidson County and also were
reviewing different written
complaints sent in by different
citizens in Davidson County.

In reading these reports and
checking and verifying this
information, it was obvious to us
that most if not all of these listed
escort services were involved in
prostitution.

Q. How did you arrive at that?

A. Okay. The main point of it was --
is that we had several irate wives
who were calling and wanting to know
what different businesses were, and
when they called them to check on
their credit card receipts were
given vague answers and hung up on.
We also talked to various
individuals who at one time or
another had worked for some of these
escort services as escorts, and they
had explained to us the terminology
and the methodology of the escort
service business.

MR. GALBREATH: I'm going to object to
the hearsay there, Your Honor.

THE COURT: Sustain the objection.

Opinion testimony is generally limited to witnesses who

qualify as experts in the subject matter of their respective

testimony. Tenn. R. Evid. 702. On occasion, lay witnesses may

express opinions when certain prerequisites are established. Tenn.

R. Evid. 701. Lay opinion, however, is fairly circumscribed. As

the Advisory Commission to the Tennessee Rules of Evidence

commented:

20
 The rule rather specifically
circumscribes the area where a lay
witness can testify to opinions as
opposed to facts. The Commission
believed that the instances would be

rare where a witness could not convey thoughts to the jury by
enumerating facts, leaving it to the jurors to draw inferences.

Add. Comm'n Comments, Tenn. R. Evid. 701.

Before a lay witness may express an opinion or inference,

the party presenting the witness must establish:

a) the witness has "personal knowledge" of the facts or

subject matter that forms the basis for the opinion or inference,

Tenn. R. Evid. 602;

b) the opinion or inference to be expressed by the

witness does not require the knowledge or skills of an expert,

Tenn. R. Evid. 701(a)(1);

c) the witness cannot readily and with equal accuracy

relate what has been perceived without expressing it in the form of

an opinion or inference, Tenn. R. Evid. 701(a)(2); and

d) the opinion or inference to be expressed by the

witness will not mislead the trier of fact to the prejudice of the

adverse party, Tenn. R. Evid. 701(a)(3).

In this case, the state did not attempt to have Sergeant

Blakley qualified as an expert in the field of prostitution. Based

on the testimony elicited from him, it is doubtful that he

possessed the training, knowledge, education, or experience to

qualify as an expert. Consequently, Sergeant Blakley should not

have been permitted to express the opinion that "most if not all of

these listed escort services were involved in prostitution" unless

that opinion was proper for expression by a lay witness and unless

the state established the prerequisites for lay opinion. We find

that neither condition required for the admission of lay testimony

21
was present in this case. Trial counsel again failed to object or

to raise the absence of the required conditions, thereby allowing

the admission of prejudicial, inadmissible, crucial evidence.

In addition to inappropriate hearsay and opinion

testimony, Sergeant Blakley testified to alleged criminal conduct

for which appellant was never charged. Sergeant Blakley was asked

to detail the sting operations his department conducted. He

testified:

A. We ran two separate operations in
August and September of 1990. These
operations were done to further our
probable cause to issue search
warrants, which we subsequently
issued. At that time we did call
these numbers listed to the R & C
Enterprises, and at that time did
talk with [the] dispatchers.

And I believe in September of 1990
our officers asked for show dates,
and the dispatcher at 918 Shelby
when we asked for this service
directly, she said that she had two
girls --

MR. GALBREATH: Objection again, Your
Honor, hearsay.

THE COURT: This is when?

THE WITNESS: September of 1990.

. . .

THE COURT: Overrule the objection.

Q. Go ahead, Sergeant.

A. The undercover officers were advised
that two girls were available but
they couldn't get them both
together. Subsequently, later -- a
few minutes later we called back to
another number in that list of phone
numbers, and at that time we talked
to the same female dispatcher or at
least the voice appeared to be the
same.

22
 Our undercover asked for, again, a
show date, two girls. At that time
the dispatcher told them you have
already called one time and we're
trying to get you two girls; we just
can't get them together right now.
And he said well, I just thought I
called another number. And she said
no, we have all thirty-nine lines
running in here.

Q. And this was to 918 Shelby Avenue --

A. Yes, sir.

Q. -- -- dispatcher, owned and operated
by this defendant?

A. Yes, sir.

Q. Go ahead.

A. Then I believe it was on the 9th of
October, 1990, we again called
several of the listed numbers to R &
C Enterprises. At that time our
undercover officers asked for a
sexual preference of half and half.

At that time the dispatcher linked
our undercover officer with a female
named Vanessa. At that time the
officer advised Vanessa to come to
the motel. She came to the motel.
She quoted what she would perform
and the amount of money.

At that time the undercover officer
under our direction told the girl
that he did not want to go through
with it, he was married and before
any money changed hands or anything
like that we dismissed the girl.
She left. At that time surveillance
officers who were placed outside
this location followed Vanessa back
to 308 Plus Park Boulevard.

Q. Was it your department's plan to not
go through with the sexual act as it
turned out? Was that what you all
were planning on doing?

A. That's correct. All we wanted was
to find out if in fact these girls
were offering sexual favors and if
they were charging money for this.

Q. And did these girls offer sexual favors?

A. Yes, sir, they did.

23
 This evidence, elicited during Sergeant Blakley direct

examination, clearly violated Rule 404(b), which provides:

Other Crimes, Wrongs, or Acts.-- Evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show action in conformity with the
character trait. It may, however, be
admissible for other purposes. The conditions
which must be satisfied before allowing such
evidence are:

(1) The court upon request must hold a
hearing outside the jury's presence;

(2) The court must determine that a
material issue exists other than
conduct conforming with a character
trait and must upon request state on
the record the material issue, the
ruling, and the reasons for
admitting the evidence; and

(3) The court must exclude the evidence
if its probative value is outweighed
by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Through discovery, defense counsel should have known that

this evidence was available to the state and should have requested

a jury-out hearing to determine its admissibility. Even if the

state has asserted that some legitimate purpose for the

introduction of the other crimes evidence, the court would still be

required to balance the probativeness with the danger of unfair

prejudice arising from admission. Given the nature and timing of

this other crimes evidence, its admissibility is suspect.

The record establishes that the representation of trial

counsel was deficient in the numerous respects that we have

24
detailed.21 Counsel's services fall far below "the range of

competence demanded of attorneys in criminal cases." State v.

Melson, 772 S.W.2d 417, 419 (Tenn. 1989). Therefore, appellant has

satisfied the first prong of the Strickland test. To establish the

prejudice prong, appellant must demonstrate that "there [was] a

reasonable probability that, but for counsel's unprofessional

errors, the result of the [trial] would have been different."

Strickland v. Washington, 466 U.S. 694 (1984). A "reasonable

probability" is defined as "a probability sufficient to undermine

confidence in the outcome." Id.

The sheer volume of inadmissible, prejudicial evidence

introduced at this trial is more than sufficient to undermine our

confidence in the outcome. Indeed, we have difficulty imagining

this trial without all the inadmissible evidence. Virtually all of

Sergeant Blakley's testimony was based on hearsay. At best, its

relevance was marginal. His opinions should have been excluded.

Tenn. R. Evid. 701. The evidence of other crimes occurring more

than a year earlier should have been subjected to Rule 404's

21
Appellant also argues that trial counsel's failure to request
a jury instruction on the possible sentence in this case
constituted ineffective assistance of counsel. The flaw in this
argument is that the only offense submitted to the jury was the
promoting of prostitution. Consequently, the only possible
punishment was the punishment prescribed for this particular
offense. An instruction on the possible punishment for an offense
is only helpful when the evidence adduced at trial supports an
instruction on one or more lesser included offenses. If the jury
finds that the accused is guilty, it may also feel that the harsh
punishment for the principal offense is inappropriate. Thus, the
jury, having been advised of the punishment for the lesser included
offenses, may return a verdict of guilt for a lesser included
offense because it feels the punishment is more appropriate to
punish the criminal conduct. Conversely, if the trial court finds,
as here, that the principal offense is the only crime supported by
the record, an instruction on the possible sentence for the offense
will not benefit the accused. Of course, this court is not
unmindful of the potential argument that a jury may acquit an
accused if it feels the only punishment for the offense is too
harsh for the accused's criminal conduct. Such a scenario is
highly unlikely. The failure of trial counsel to make such a
request did not prejudice appellant in this case.

25
precautionary tests. Agent McGaughy's testimony regarding Swartz's

identification of appellant as "her boss" was hearsay. Swartz' s

and Ashworth's guilty pleas were irrelevant and highly prejudicial.

The description of these women's activities with Jimmy Hester, but

for the inadmissible hearsay which connected them to appellant, was

only tangentially relevant. The detailed history of prostitution

in Brentwood was not connected to appellant and should not have

been admitted. Yet counsel neglected to challenge most all of this

evidence.

When this unchallenged inadmissible evidence is compared

with the remaining evidence, it becomes apparent that counsel's

deficient performance prejudiced appellant. Absent the

inadmissible evidence, the proof in appellant's case would have

been highly circumstantial and could easily have yielded an

acquittal.

Therefore, we conclude that counsel's numerous

deficiencies affected the outcome of this trial. This case tried

with competent counsel would not have resembled the case before us.

Counsel's ineffectiveness deprived appellant of a fair trial.

Catherine Ward's conviction is reversed. The case is

remanded to the trial court for a new trial.

___________________________________
Penny J. White, Judge

CONCUR:

26
(See Separate Dissenting Opinion)
Joe B. Jones, Judge

___________________________________
Gary R. Wade, Judge

27