IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1998 SESSION
March 9, 1999
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9802-CR-00073
Appellee, )
) SUMNER COUNTY
VS. )
) HON. JANE WHEATCRAFT,
CHARLES A. CRENSHAW, a.k.a ) JUDGE
“BOO” )
)
Appellant. ) (Ineffective Assistance of Counsel)
FOR THE APPELLANT: FOR THE APPELLEE:
BRENT HORST JOHN KNOX WALKUP
42 Rutledge St. Attorney General & Reporter
Nashville, TN 37210
(On Appeal) KIM R. HELPER
Asst. Attorney General
ROGER SINDLE Cordell Hull Bldg., 2nd Fl.
103 Bluegrass Commons Blvd. 425 Fifth Ave., North
Hendersonville, TN 37075 Nashville, TN 37243-0493
(At Trial)
LAWRENCE RAY WHITLEY
District Attorney General
DEE GAY
Asst. District Attorney General
113 West Main St.
Gallatin, TN 37066
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On April 1, 1997, the defendant was found guilty by a jury of facilitation of
the sale of cocaine and of possession of marijuana. The defendant was sentenced as
a Range II multiple offender to a term of eight years for the facilitation of the sale of
cocaine and a term of eleven months, twenty-nine days for the possession of marijuana.
These sentences were to run consecutively and were to be served in the Tennessee
Department of Correction. The defendant’s subsequent motion for a new trial was denied
by the trial court. The defendant now appeals and argues that he was denied the
effective assistance of counsel. After a review of the record and applicable law, we find
the defendant’s contention to be without merit and thus affirm the judgment of the court
below.
The defendant’s convictions stem from his involvement with a sale of crack
cocaine on February 2, 1996, to an informant working with the Sumner County Drug Task
Force. The evidence at trial indicated that the defendant, while in Michael Everett’s car,
gave a quantity of crack cocaine to Eric Oldham. After dropping the defendant off, Mr.
Everett and Mr. Oldham drove around the neighborhood. Mr. Oldham then sold the
cocaine he received from the defendant to the confidential informant. After the sale, the
informant returned to the drug task force location where he had been wired and searched
before the sale. After the informant briefed the officers and gave them the purchased
cocaine, the officers began to search for Mr. Everett’s vehicle. Mr. Everett testified that
after the sale to the informant, he and Mr. Oldham went to a friend’s nearby residence.
The defendant arrived shortly thereafter, at which point the defendant and Mr. Oldham
went outside the residence for a few minutes. Mr. Everett, Mr. Oldham, and the
defendant then left the residence and were spotted by police a few minutes later. After
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the police initiated a traffic stop of Mr. Everett’s car, the three men were searched. Upon
searching the defendant, the police found six hundred fifty dollars ($650) in cash. After
examining the cash, the police found that two of the twenty dollar ($20) bills were the bills
used by the informant to purchase the cocaine from Mr. Oldham.1 The police also found
1.3 grams of marijuana in the car.
The defendant now contends that his trial counsel was ineffective for
several reasons. In reviewing the petitioner’s Sixth Amendment claim of ineffective
assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney were within the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a
claim of ineffective counsel, a petitioner “must show that counsel’s representation fell
below an objective standard of reasonableness” and that this performance prejudiced the
defense. There must be a reasonable probability that but for counsel’s error the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).
The defendant claims that his trial counsel was ineffective for his failure to
object to, and his own solicitation of, evidence of other bad acts and crimes committed
by the defendant. Specifically, the defendant points to Mr. Everett’s testimony, which
referred to the defendant selling cocaine to various other people on the day Mr. Oldham
sold the cocaine to the informant. The defendant claims that there was no connection
between these earlier sales to other people and the sale to the confidential informant.
The defendant contends that his trial counsel should have objected to the testimony.
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The police had photocopied the money given to the informant to buy the crack cocaine. As
such, the police were able to identify the bills according to their serial number.
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Tennessee Rule of Evidence 404(b) governs the admissibility of prior
misconduct. It states,
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). However, there are exceptions to this rule. “[E]vidence of other
crimes may be admissible to show (1) motive; (2) intent; (3) guilty knowledge; (4) identity
of the defendant; (5) absence of mistake or accident; or (6) a common scheme or plan
for commission of two or more crimes so related to each other that proof of one tends to
establish the other.” State v. Hoyt, 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995) (citing
Collard v. State, 526 S.W.2d 112, 114 (Tenn. 1975)); see also State v. Bordis, 905
S.W.2d 214, 227 (Tenn. Crim. App. 1995).
In the case at bar, the evidence of other bad acts referred to the defendant
selling drugs to other people shortly before the sale to the informant. As this evidence
tends to show that the defendant, who furnished the cocaine that Mr. Oldham ultimately
sold to the informant, was involved in a common scheme to sell drugs, it was admissible
as an exception to Tennessee Rule of Evidence 404(b). As such, the defendant’s trial
counsel did not err in failing to object to the introduction of the evidence. This contention
is without merit.
The defendant next contends that he received the ineffective assistance of
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counsel when his trial counsel elicited testimony from Mr. Everett that the defendant had,
on several prior occasions, given Mr. Everett drugs. The actual testimony is as follows:
Q. Let me go over your testimony for you. Your testimony was [the
defendant] gave [you] [drugs] because [you] gave him a ride. So you
transported [the defendant] that day, right?
A. Yeah, I did transport him that day, yes, sir.
Q. And in the past, have people like [the defendant], maybe [the
defendant] himself or friends or acquaintances, have they given you
some dope?
A. Yes, sir.
Q. There is nothing unusual about that, is there?
A. No, sir.
Q. I really have a problem with this, too, and maybe you can help me.
Your testimony is, I’m riding along in the car with these people, or I’m in
their acquaintance, and I’m not selling any dope; but [the defendant]
gives to Mr. Oldham the dope and says, “Go sell this, and bring me the
money back.” Now, did you ever give anybody dope and say, “Go sell
this and bring the money back”?
A. No, sir.
Q. You never have done that?
A. No, sir.
Q. Why? Why wouldn’t you do that?
A. No, sir.
Q. Why not?
A. I was too strung out, and I always smoked it.
Q. So that would be kind of unusual, wouldn’t it, for somebody that is a
user?
A. It would be unusual for somebody that was using, for the dope dealer
to give the user the dope and thinking that he’s going to go out and sell
it. More than likely, he’s going to smoke it. . . .
Q. Mr. Oldham, is he a user?
A. I don’t know . . . .
Q. Wait a minute. How long have you known Mr. Oldham?
A. I’ve known Mr. Oldham a long time.
Q. You’re telling the ladies and gentlemen you never saw him use
drugs. Think about that.
A. I have seen him use drugs.
Q. So now he is a user?
A. Yeah, he is somewhat of a user . . . .
Q. Mr. Everett, in all honesty, can you look at the . . . jury and you tell
them this? You don’t think it was a little bit unusual about the fact of
your testimony . . . . [The defendant] is going to give to a user some
drugs and say, you know, go out and sell this, you know, and bring the
money back? You don’t see anything unusual?
A. It is uncommon.
In light of this series of questions, it seems clear that the defendant’s trial counsel was
trying to raise doubt as to whether the defendant had given drugs to Mr. Oldham for
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resale. This Court should not second-guess trial counsel’s tactical and strategic choices
unless those choices were uninformed because of inadequate preparation, Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to have been
ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980). As it
seems that trial counsel’s strategy in this line of questioning was to impeach the credibility
of the witness, we will not second-guess his tactics because another tactic might have
produced a different result. In addition, even assuming that this line of questioning was
due to inadequate preparation or fell below an objective standard of reasonableness, in
light of the evidence against him, the defendant has failed to show that but for this error
the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88,
692, 694. As such, this contention is also without merit.
The defendant next contends that he received the ineffective assistance of
counsel because his trial counsel did not object to Officer Bunch’s testimony that
indicated he knew the defendant “on sight” for most of his police career, that the
defendant cussed and yelled at the time of his arrest, and that the defendant had always
had that kind of attitude. However, the defendant’s trial counsel specifically stated during
cross-examination of Officer Bunch that there were some questions asked during direct
examination to which he did not object because he wanted to go over them during cross-
examination. The defendant’s trial counsel then questioned the officer regarding the
defendant’s demeanor at the time of his arrest. Trial counsel made the point, and Officer
Bunch agreed, that it is not unusual for people to become upset when they are arrested
for a crime they did not commit. Once again, this is a matter of trial strategy. As this
choice of strategy was not due to inadequate preparation and it did not fall below an
objective standard of reasonableness, the defendant has failed to show that he received
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the ineffective assistance of counsel. The defendant has also failed to show that any
comments by Officer Bunch that he knew the defendant prior to this arrest had any
prejudicial effect or that the result of the proceeding would have been different had his
trial counsel objected to this testimony. This contention is also without merit.
The defendant finally contends that he did not receive the effective
assistance of counsel because his trial counsel did not object to the prosecutor’s
comments during closing argument that the defendant is a “big kahuna,” that the
defendant had been selling drugs all day that day, and that providing marijuana “is the
regular for [the defendant].” The defendant argues that these comments rise to the level
of prosecutorial misconduct and his trial counsel’s failure to object to these comments
constitutes ineffective assistance of counsel.
When claiming prosecutorial misconduct, the defendant is required to show
that the argument was so inflammatory or the conduct so improper that it affected the
verdict to his detriment. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). In
reviewing an allegation of improper conduct, this Court should consider several factors
including the intent of the prosecutor, the curative measures that were undertaken by the
court, the improper conduct viewed in context and in light of the facts and circumstances
of the case, the cumulative effect of the remarks with any other errors in the record, and
the relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340, 344
(Tenn. Crim. App. 1976).
In the case at bar, the prosecutor referred to the defendant as a “big
kahuna” in an attempt to portray the defendant as the leader of a small scale drug ring.
As for the statement that the defendant had been selling drugs all day that day and that
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providing marijuana is “the regular” for him, the prosecutor was simply paraphrasing the
testimony of Mr. Everett. In light of this and the strength of the State’s case against the
defendant, the defendant has failed to show that the prosecutor’s argument was so
inflammatory or improper that it prejudiced the defendant. Therefore, this contention is
without merit.
In sum, we find that the defendant received the effective assistance of
counsel. Accordingly, we affirm the trial court’s denial of the defendant’s motion for a
new trial.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
NORMA McGEE OGLE, Judge
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