State v. Joe Nichols

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9609-CC-00293
)
Appellee, )
) McNAIRY COUNTY
)
V. )
) HON. JON KERRY BLACKWOOD,
JOE NATHAN NICHOLS, ) JUDGE
)
Appe llant. ) (DEL IVER Y OF SCH EDU LE II)

FOR THE APPELLANT: FOR THE APPELLEE:

LLOYD R. TATUM JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
124 East Main Street
P.O. Box 293 ELLEN H. POLLACK
Henderson, TN 38340 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

ELIZABETH T. RICE
District Attorney General

ED NEAL McDANIEL
Assistant District Attorney General
300 Industrial Pa rk Drive
P.O. Box 473
Selmer, TN 38375

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
 OPINION

The Defendant appeals as of right pursuant to Rule 3 of the Tennessee

Rules of Appellate Pro cedure. Th e Defend ant was con victed by a jury of Delivery

of Schedule II Drugs, cocaine, less than 0.5 gra ms in the C ircuit Court of McN airy

County. He was sentenced to three years and six months as a Range I Standard

Offender. The Defendant argues two issues in h is app eal. Th e first iss ue is

whether the De fenda nt’s co nviction is barre d by the Doub le Jeopardy provisions

of the United States and Tennessee Constitutions. His second issue is whether

the evidence was sufficient to support his conviction. W e affirm the judgment of

the trial cou rt.

The McNairy County Drug Task Force hired two confidential informants,

Tracey Hickman and Sandra Gee, to purchase illegal drugs. These two

informa nts set up a drug buy with the De fenda nt in June 1995. After being fitted

with a recorder and given some money by the officers, they met the Defendant

in his truc k whe re they purch ased a fifty dollar ($50.00) rock of crack cocaine

from him. The women gave the cocaine to the officers immediately after they

purchased it. The Defendant was arrested in September 1995 after being

indicted in this case . Upon being arrested, the authorities took the De fenda nt’s

pick up truck, his concrete finishing tools which were in the truck, and $671.00

cash.

At least some of the concrete finishing tools in the possession of the

Defendant at the time of his arre st were rented from a third pa rty. The se too ls

-2-
were returned two or three days later to the Defendant so that he could de liver

them to the third party. The tools a ctually owned b y the Defend ant were

returned to him in January. Therefore, the Defendant’s tools were kept by law

enforcement authorities for approximately four months.

A “Civil Settlement Agreement and Release of Liability” dated January 30,

1996 provided that the Defendant’s truck would be forfeited, and the $671.00

would be return ed to the D efenda nt. The Defendant’s attorney represented the

Defendant in the negotiation of this a greemen t. The agreement was entered

voluntarily, and there was not a hearing held on the forfeiture.

I.

W e first addres s the sufficie ncy of the evidenc e. The D efenda nt argues

there was insufficient evidence to support his conviction. When an accused

challenges the sufficiency of the co nvicting evidence , the standard is w hether,

after reviewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond

a reason able do ubt. Jack son v. V irginia, 443 U.S. 307, 319 (1979). Questions

concerning the credibility of the witnesses, the weight and value to be given the

evidence, as well as all factual issues raised b y the evidence, a re resolved by the

trier of fact, not th is court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim.

App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court reweigh or

reevalua te the evidence. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

-3-
 A jury verdict ap proved b y the trial judg e accre dits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn . 1973). On appea l, the State is entitled to the stronge st legitima te

view of the evidence and all inferences therefrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a p resum ption o f guilt, the accu sed h as the burde n in this court o f

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

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Grace, 493

S.W.2d at 476.

The first witness for the state wa s the Region al Crime La boratory

Supervisor for the Tenn essee Bu reau of Investiga tion Cr ime L abora tory in

Jackson. She testified that the su bstance wh ich was purch ased by the two

informa nts was 0.1 gram of a coca ine base sched ule II subs tance.

The confidential informants, Tracey Hickman and Sandra Gee were also

witnesses at the trial. They testified that they purchased undercover narcotics.

They were paid every day that they went ou t and tried to purchase narcotics,

whether they were successful or not. On June 9, the day of the incident, the

informa nts met one of the officers, Officer Weaver, and were wired so that Officer

Weaver could m onitor th e con versa tion. Th ey then went to the De fenda nt’s

house, but left because there were people standing outside and someone

threatened the informants with a brick. Hickman and Gee then went to a

telephone and called the Defendant. They asked the Defendant if he had

anything, and he said that he did. The informants met the Defendant, who was

by himse lf, on the road, and they purchased a $50.00 rock of crack cocaine.

-4-
Once the purchase had been completed Hickman and Gee met Officer Weaver

and gave him the crack cocaine and the recording device.

On cross-examination, the criminal history of the two informants was

brought out. Both Hickman and Gee testified that they had used drugs in the

past, but were not using drugs during the tim e period they were working as

informa nts. Ms. G ee den ied prostitu ting herse lf while acting as an info rmant.

The next witness was Officer Weaver. He confirmed that Ms. Hickman and

Ms. Gee wo rked with him in a n underco ver drug operation. Officer Weaver

testified that their ren t was p aid and they were paid $60.00 per day on days that

they worked. He testified that the mo ney use d to pay them came from the drug

fund which is supplied through drug fines and drug seizures. He confirmed the

story that the two inform ants told concerning the drug purchase. After the

purchase, he received the crack cocaine and took it to the T.B.I. lab in Jackson

for testing. After the testing was complete, he brought it back to the evidence

room.

The first witness for the defense was a former employer of the De fendan t.

He testified that on the day of the incident the Defendant was working for him on

a house remodeling project. The next witness for the defense was the

Defe ndan t’s third cousin, Larry Robinson. Robinson testified that he saw the

Defendant on June 9. The Defendant picked up the witness while he was

walking to Selm er to he lp the D efend ant loa d his co ncrete tools in his truck. He

testified that the Defe ndan t kept h is tools in his truc k. The witnes s state d that it

must have been about 5:00 or 5:30 when the Defendant picked him up and took

-5-
the witness to the shop behind the Defendant’s house. The witness testified that

the first thing they did in the shop was d rink so me b eer. A fter drin king a coup le

of cans, they unloaded the tools in the truck. The witness also testified that he

knew of the two informants, but he did not know them personally. He stated that

he had seen Gee use drugs during the time period that she was an informa nt.

The w itness also testified that h e had k nowled ge that G ee pros tituted hers elf.

The defen se’s next witne ss was the Defe ndant’s w ife, Louise Nichols . She

testified that they had been married for 28 years and had children and

grandchildren. She sta ted that the day of the incident she got off work at 3:30

p.m. and got home about 3:40 p.m. She stated that there w as no teleph one in

the shop, bu t there wa s a teleph one in the house . She sa id that she did not

receive any pho ne calls fro m a wo man lo oking for th e Defe ndant, a nd the

Defendant did not answer the phone that day or evening. Sh e stated that Larry

Robinson was with the Defendant in his shop all night long. She stated that she

would remember if a woman called asking for her husband “[b]ecause if any

woman call my hous e, they d on’t sp eak to Joe, a nyhow , beca use I w on’t let h im

talk to them .”

On cross-examination, the State asked the Defendant’s wife how she

remembered the incidents of June 9. She stated that she remembered June 9

because the Defendant always tells her where he is going to work and she

remembered he wa s goin g to wo rk for his emp loyer. S he ad mitted she co uld not

remember June 8 or June 10. She stated she did not remember whether or not

the De fendan t worked on Jun e 10. Th e defen se then closed its p roof.

-6-
 The Defendant argues in his brief that the testimony of his witnesses was

unrefuted and tha t the inform ants we re unreliab le becau se of evidence of drug

use and prostitution. Therefore, the Defendant argues, the evidence is

insufficient to support his conviction. However, questions concerning the

credibility of the witnesses, the weight and value to be given the evidence, as we ll

as all factual issues raised by the evidence, are resolved by the trier of fact, not

this court. State v. Pappas, 754 S.W.2d 620, 62 3 (Ten n. Crim. A pp.), perm. to

appeal denied, id. (Tenn. 1987). Nor may this court reweigh or reevaluate the

evidenc e. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

The jurors w ho de cided this cas e obvio usly found the Sta te’s witnesse s to

be more credib le than the defense witnesses. As stated above, this court cannot

make judgments concerning the credibility of witnesses and must rely on the

determina tion of the jury.

W e find that the re is su fficient e videnc e to su pport th e Def enda nt’s

conviction . This issu e is withou t merit.

II.

The next issue we will address is wheth er the D efend ant’s c onvictio n is

barred by the double jeopardy provisions of the United States and Tennessee

Constitutions. The Double Jeopardy clause in both the United States and

Tennessee Cons titutions prohibits multiple punishments for the same offense.

-7-
The Defendant argues that the taking of his tools for fo ur months constitutes

punish ment, s o that he c annot b e punish ed for his c rime in a c riminal co urt.

The United States Supreme Court recently addressed the question of

doub le jeopardy in connection with forfeiture statutes in United States v. Ursery,

116 S.Ct. 2135 (1996). The Supreme Court stated, “in rem civil forfeiture is a

remedial civil sanction, distinct from potentially punitive in personam civil

penalties such as fines, a nd doe s not con stitute a pun ishm ent un der the Doub le

Jeopardy Clause.” Ursery, 116 S .Ct. at 2 142. T he Co urt uph eld a civil forfeiture

based on a federal statute which is almo st iden tical to th e Te nnes see s tatute in

question here.

This court has held that the Ursery reaso ning a pplies to the s tatute in

question. In State v. Grapel Simpson, No. 02C0 1-9508-C C-00239 , McNairy

Coun ty (Tenn. Crim. App., Jackson, filed Aug. 2, 1996), this court addressed a

situation similar to the one he re where forfeiture pro ceedin gs were instituted to

obtain the defendant’s car under the same statute in effect in the case sub judice.

In Simpson, this court he ld that the fo rfeiture of the defendant’s car was

constitutional becau se there was no distinction b etween the facts of Simpson and

that of Ursery. Simpson, No. 02C01-9508-CC-00239, slip. op. at 7-8.

Several facts in this case are important in regard to this issue. At the

hearing on the M otion to Dismiss, a carbon copy and a photocopy of a “Notice of

Property Seizure and Forfeiture of Conveyances” were introduced as exhibits.

The photocopy includes a notation “concrete tools in truck” in a section titled

“Other Property,” while the carbo n cop y does not ha ve this n otation . This form

-8-
also listed the Defendant’s truck and $671.00 in currency. Also at the hearing,

the Defenda nt testified concerning the return of his tools prior to the entry of the

“Civil Settlement Agreement and Release of Liability.” He stated, “[w]ell, I got

those tools back through a --- it was supposed to have been a court order

document from Memphis.” A “Petition for Hear ing” to the C omm issioner o f Safety

was also entered as an exhibit at the hearing. The Defendant testified the

Petition was a claim to obtain his truck, currency and tools. The petition states

that it is in regard to “One 1983 Ford Pick Up Truck VIN #FTCC10AXDU A66491,

Tennessee License Plate number 569-DPC and Conte nts.” (Empha sis added).

The evide nce at the hea ring shows tha t the tools were taken with the truck and

the curre ncy.

In State v. David M oore, 02C01-9605-CR-00148, Shelby County (Tenn.

Crim. App., Jackson, filed Dec. 19, 1996), this court held that civil forfeiture of

property does not implicate double jeopardy when the offender enters into a

comp romis e settlement. In Moore, $6,267 in U.S. Currency was seized. The

defendant entered into a settlem ent whe reby all but $ 1,000.0 0 was re turned to

him. T he rem aining $1,00 0.00 w as forfe ited. Th is court held that the forfeiture

of the $1,000.00 did not constitute double jeopardy. If the forfeiture of the money

in Moore is not dou ble jeopa rdy, the se izing of the Defe ndan t’s con crete to ols

which were not forfeited but returne d could not be double jeopa rdy.

The reco rd reflects that the tools were seized for forfeiture along with the

Defe ndan t’s truck and $671.00. The Defendant treated them as being seized for

forfeiture, but they were eventually returned to him, according to his testimony by

“a court o rder do cum ent from Mem phis.” T he too ls were returned within a

-9-
reaso nable amoun t of time. There was no pu nishmen t, therefore, there was no

double jeop ardy.

This issu e is withou t merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________
THOMAS T. W OODALL, Judge

CONCUR:

___________________________________
PAUL G. SUMMERS , Judge

___________________________________
DAVID G. HAYES, Judge

-10-