Opinion
No. 02C01-9812-CC-00365.
October 6, 1999.
Henderson County, Hon. Whit Lafon, Judge, (Sale of Schedule III Drug, Delivery of Schedule III Drug)
AFFIRMED
FOR THE APPELLANT:
MARCUS M. REAVES, (on appeal) Attorney at Law, HOWARD DOUGLASS, (at trial) Attorney at Law
FOR THE APPELLEE:
PAUL G. SUMMERS, Attorney General Reporter, J. ROSS DYER, Asst. Attorney General, JAMES G. (JERRY) WOODALL, District Attorney General, BILL MARTIN, Asst. District Attorney General
OPINION
The defendant, Ruth Stanford, stands convicted of sale of a Schedule III controlled substance and delivery of a Schedule III controlled substance. See Tenn. Code Ann. § 39-17-417 (1991) (amended 1996, 1997) (proscriptive statute); § 39-17-410 (1991) (amended 1996) (scheduled drugs). Stanford received her convictions at a jury trial in the Henderson County Circuit Court. She was sentenced to serve concurrent two-year sentences for these Class D felonies, with the first 90 days to be served in the county facility and the balance to be served on probation. In this appeal, she raises three issues for our consideration:
See Tenn. R. Crim. P. 32(c)(1) ("Unless it is made to affirmatively appear that the sentences are consecutive, they shall be deemed to be concurrent.") In the case at bar, neither consecutive or concurrent sentences was specified.
1. Whether the trial court erred in allowing the testimony of the witness who purchased drugs from Stanford without qualifying the basis of knowledge and reliability of the witness's testimony.
2. Whether the trial court erred in denying a continuance of the hearing on the motion for new trial and ruling on the merits of the motion.
3. Whether the trial court properly sentenced the defendant.
Upon review of the record, the briefs of the parties, and the law, we find no reversible error and affirm the judgment of the trial court.
In the light most favorable to the state, the defendant sold eight dihydrocodeinone pills to Paula Hughes Moody on February 26, 1996. Ms. Moody had pending drug charges and had agreed to work with the local drug task force with the hope of gaining a favorable recommendation at sentencing. Moody had known the defendant for seven or eight years. Moody testified that the nature of their acquaintance was "drugs." Two members of the drug task force, Officer Michael Melton of the Lexington Police Department, and Deputy Greg Hopper of the Henderson County Sheriff's Department, sent Moody to purchase drugs from the defendant. The officers provided Moody with money and a recording device, the latter of which Moody concealed on her person. Moody drove to the defendant's house and purchased drugs from the defendant. Moody returned to the officers' location and provided them with the drugs, the recording device, and the audio tape of the transaction.
I
In a novel issue, the defendant claims the trial court erred in allowing Moody to testify without first finding that Moody (1) had a basis for knowledge that the defendant was involved in criminal activity, and (2) was credible or her information reliable. In support of this proposition, the defendant cites State v. Marshall, 870 S.W.2d 532 (Tenn.Crim.App. 1993). The defendant concedes that this issue is raised for the first time on appeal but asks that the court take notice of it as plain error.
Generally, issues which were not raised in the trial court will not be considered on appeal. See Tenn. R. App. P. 36(a); see also State v. Adkisson, 899 S.W.2d 626, 636 (Tenn.Crim.App. 1994). If, however, a party seeks relief upon a claim of plain error, the record must demonstrate that a "clear and unequivocal rule of law [has] been breached." Id. at 641.
In the present case, there is no dispute that the issue was not raised below. Thus, the defendant's only potential avenue of relief is via the plain error doctrine. See Tenn. R. Crim. P. 52(b). In her brief, the defendant concedes that the context in which the Marshall court applied the two-pronged test for assessing information from a confidential informant was that of probable cause, not as a prerequisite for allowing the testimony of the informant at trial. The defense has cited no authority for such an extension of the law, and we have found none upon our review. As such, no clear and unequivocal rule of law has been breached, and thus, the plain error doctrine does not afford the possibility of relief to the defendant.
II
In her second issue, the defendant complains of the trial court's denial of a continuance of the hearing on the motion for new trial and the court's ruling on the merits of the motion. At the beginning of the hearing, the defense notified the court that a subpoenaed witness, one of the jurors from the defendant's trial, had failed to appear. The defense moved for a continuance of the hearing. The court inquired into the nature of the testimony the witness would have given and determined that even if this proof were before it, the court would nevertheless rule against the defendant on the substantive issue. Thus, the court denied the motion for a continuance and the motion for new trial.
According to the defense counsel's argument at the hearing, the defense anticipated offering the juror's testimony that during deliberations he had informed the jury of the defendant's middle name. The defendant's middle name had not been the subject of proof. The defendant's counsel claimed that during the deliberative process the jury had inquired of the court the defendant's middle name. According to counsel, the court declined to give the jury this information. Thereafter, the jury returned guilty verdicts against the defendant. According to defense counsel, the witness/juror would testify that he knew the defendant's middle name from sources outside the proof and provided this information to the other jurors.
Tennessee Rule of Evidence 606(b) governs the competency of a juror to testify in a proceeding in which a party challenges the validity of the jury's verdict. Generally, testimony about matters "occurring during the course of the jury's deliberations" or about "a juror's mind or emotion" in reaching that juror's decision is incompetent. However, testimony about "extraneous prejudicial information . . . improperly brought to the jury's attention," inter alia, is competent. Tenn. R. Evid. 606(b). See State v. Blackwell , 664 S.W.2d 686, 688-89 (Tenn. 1984) (in a case decided prior to the adoption of Tennessee Rules of Evidence, court adopts federal Rule 606(b) and distinguishes between federal Rule 606(b)'s "extraneous prejudicial information . . . improperly brought to the jury's attention" and "outside information . . . improperly brought to bear upon any juror").
In Caldararo v. Vanderbilt University, 794 S.W.2d 738 (Tenn.App. 1990), the appellate court offered guidance as to the scope of information that is included in the "extraneous prejudicial information" exception to the incompetency rule.
External influences that could warrant a new trial if found to be prejudicial include: (1) exposure to news items about the trial, (2) consideration of facts not admitted in evidence, and (3) communications with non-jurors about the case . . . Internal influences that are not grounds to overturn a verdict include: (1) discussions among jurors, (2) intimidation or harassment of one juror by another, (3) a juror's personal experiences not directly related to the litigation, and (4) a juror's subjective thoughts, fears, and emotions.
Caldararo, 794 S.W.2d at 742 (citations omitted). Embellishing the distinction between "external" and "internal" influences, the court said, "[J]urors are not required to be completely ignorant about a case, and a verdict will not be overturned because of jurors' generalized knowledge of the parties or of some other aspect of the case." Id. at 744 (emphasis added). On the other hand, "[A] juror's personal experiences directly relating to the parties or events directly involved in the litigation may be [external information]." Id. (emphasis added).
In the case at bar, the information at issue is the defendant's middle name, Helen. Although that information was provided to the court in the presentence report, it was not presented to the jury as a part of the evidence at trial. For purposes of our review in this appeal, the information was imparted to the jury, during their deliberations, by the juror whom the defendant sought to call as a witness at his hearing on the motion for new trial.
Although identity was at issue in the case, and although the possible mention of the name "Ruth Helen" on the undercover tape might in some way assist the state in proving its case if the defendant's name was shown to be "Ruth Helen," a person's name is part of the common knowledge about that person. Indeed, other than a person's appearance, it is difficult to think of any information about that person that is more common than the name by which he or she is known in the community. Knowledge of a person's appearance or name may signify nothing more than knowledge of that person's existence, and we believe this type of information usually fits within the rubric of "generalized knowledge of the parties." See Caldararo, 794 S.W.2d at 744. To be sure, the defendant's representation of the anticipated testimony is utterly devoid of any basis for concluding that the juror's knowledge of the defendant's name emanated from an experience directly related to the defendant or an event involving matters in issue, as opposed to the juror's general, common knowledge. As such, we view the information as being an internal influence and not an external or extraneous influence, with the result that the proposed juror testimony was incompetent. Accordingly, the trial court did not err in overruling this issue in the motion for new trial, and even if it erred in denying the defendant a continuance because of the non-appearance of the proposed witness, the error was harmless. Tenn. R. App. P. 36(b).
III
Finally, the defendant claims that the trial court improperly sentenced her to split confinement, rather than total probation. When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review of the record with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the 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 burden of showing that the sentence is improper is upon the appellant." Id. In the event the record fails to demonstrate the required consideration by the trial court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court properly considered all relevant factors and its findings of fact are adequately supported by the record, this court must affirm the sentence, "even if we would have preferred a different result." State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.Crim.App. 1991).
In making its sentencing determination, the trial court, at the conclusion of the sentencing hearing, determines the range of sentence and then determines the specific sentence and the propriety of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(a), (b) (1997); Tenn. Code Ann. § 40-35-103(5) (1997);State v. Holland, 860 S.W.2d 53, 60 (Tenn.Crim.App. 1993).
A defendant who "is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary." Tenn. Code Ann. § 40-35-102(6) (1997). Our sentencing law also provides that "convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation, shall be given first priority regarding sentences involving incarceration." Tenn. Code Ann. § 40-35-102(5) (1997). Thus, a defendant who meets the criteria of section 40-35-102(6) is presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption. However, the act does not provide that all offenders who meet the criteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances presented in each case.See State v. Taylor, 744 S.W.2d 919, 922 (Tenn.Crim.App. 1987).
With respect to probation as a specific form of alternative sentencing, the burden for establishing suitability for probation remains with the defendant. State v. Bingham, 910 S.W.2d 448, 455-56 (Tenn.Crim.App. 1995). Compare Tenn. Code Ann. § 40-35-102(6) (1997) (presumptive favorable candidates for alternative sentencing) with Tenn. Code Ann. § 40-35-303(a) (1997) (eligible candidates for probation).
In the case at bar, there is no indication in the record that the trial court considered the relevant principles. Thus, our review is de novo unaccompanied by the presumption of correctness.
The defendant in the present case comes before the court presumed to be a favorable candidate for alternative sentencing. Moreover, she is eligible for probation. At the time of sentencing, the defendant was 48 years old and employed as a factory worker. She had one prior conviction of aggravated assault from a domestic situation which occurred in the mid-1980s, for which she served six years on probation. At the time of sentencing, another drug case was pending against her. She has one minor child who resides with her.
At the sentencing hearing, the judge noted that there was "no question" in his mind that the defendant had been properly identified at trial. This finding stands in stark contrast to the defendant's testimony that she did not commit the offenses and that her voice was not recorded on the tape of the transaction. Implicit in the trial court's statement is a finding that the defendant was incredible. This finding by the trial court is significant to our de novo review of the sentencing determination. As this court has observed on many occasions, untruthfulness is a proper basis for denial of probation. See, e.g., State v. Dowdy, 894 S.W.2d 301, 305 (Tenn.Crim.App. 1994). Thus, on de novo review, it is apparent that the defendant failed to carry the burden of establishing suitability for an entirely probated sentence. As such, the trial court did not err in granting the defendant a partially probated sentence.
We note that the seller on the audio tape told the buyer that her mother had died the "twenty-seventh of last month." The state's evidence established that the offenses were committed on February 26, 1996. The defendant testified that her mother died on January 27, 1996.
Finding no error requiring reversal, we affirm the judgment of the trial court.
_______________________________ JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_____________________________ JOSEPH M. TIPTON, JUDGE
_____________________________ JOHN EVERETT WILLIAMS, JUDGE
I concur in the majority opinion, except I view the juror issue somewhat differently. First, I believe that the juror's proffered testimony relates to a fact not in evidence, i.e., the defendant's middle name, that does not fall within the juror's generalized knowledge. This information could easily relate to the case because the central issue was the identity of the drug seller.
Under the majority opinion's analysis, as a fact not in evidence, it constituted an external influence. This means that, procedurally, it was to be presumed prejudicial, and the burden fell upon the state to rebut the presumption. See State v. Young, 866 S.W.2d 194, 196 (Tenn.Crim.App. 1992); State v. Blackwell, 664 S.W.2d 686, 689 (Tenn. 1984); see also Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 451 (1954). Thus, the trial court would have erred by not allowing the defendant the opportunity to have the juror testify.
However, I would uphold the trial court because I do not believe that the record supports a conclusion that the fact not in evidence was an improper influence upon the jury. The record in this case reflects that the defendant does not contend that the juror learned the defendant's middle name during the trial stage. Instead, she assumes that the juror had pretrial knowledge of her middle name. In this respect, I believe that a distinct difference exists when the juror having particular knowledge of events related to the case is totally honest during voir dire and the defendant has a full opportunity to question the juror about that knowledge. Under such circumstances, the fact that the defendant failed to question the juror fully before accepting him or her as a trial juror is of no consequence. Acceptance of the jurors effectively constitutes the parties' consent that the jurors, with all their knowledge and experiences, will decide the case. See, e.g., United States v. Rigsby, 45 F.3d 120, 125 (6th Cir. 1995). If such were not the rule, it would be difficult to select juries, particularly in rural venues.
The twentieth century American jury has moved a long way from its medieval origins. Today's juror must be "indifferent" and "[h]is verdict must be based upon the evidence developed at the trial." Still we would not lightly assume that the jury's original role as the voice of the country may not sufficiently persist that neither the specific guarantees of an impartial jury and of confrontation nor the more general one of due process would be violated simply because jurors with open minds were influenced to some degree by community knowledge that a defendant was "wicked" or the reverse, even though this was not in evidence. One, although by no means the only, purpose of the insistence on trial in the vicinage both in Article III, § 2, and in the Sixth Amendment, must have been to entitle a defendant to trial where he is known-and this may sometimes work against him rather than in his favor. Indeed there are still sections of the country where it might be impossible to find twelve jurors who were totally ignorant about a defendant.
United States ex rel. Owen v. McMann, 435 F.2d 813, 817 (2d Cir. 1970) (citations and footnote omitted).
Absent a showing that a potential juror failed to disclose facts after questioning that should reasonably elicit those facts, I would hold that dissemination of those facts to other jurors during deliberations would not be improper. In the present
case, nothing indicates that the juror was not candid during voir dire. Therefore, I see no juror impropriety.
________________________________ Joseph M. Tipton, Judge