Willie Witherspoon v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1999 SESSION
September 24, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
WILLIE WITHERSPOON, * C.C.A. # 01C01-9809-CC-00363
Appellant, * ROBERTSON COUNTY
VS. * Honorable Robert W. Wedemeyer,
Judge
STATE OF TENNESSEE, * (Sale of Schedule II Controlled
Substance - 2 counts)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL R. JONES (On Appeal) JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
110 Public Square
Springfield, TN 37172 KIM R. HELPER
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
B. DENT MORRISS
Assistant District Attorney
500 South Main Street
Springfield, TN 37172
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Willie Witherspoon, files this delayed appeal from a
Robertson County jury verdict convicting him of two sales of a Schedule II
controlled substance. One sale, a Class B felony, involved 0.5 or more grams of
cocaine, and the other sale, a Class C felony, involved less than 0.5 gram of
cocaine.
The defendant was sentenced to the Department of Correction for eleven
years as a Range I standard offender for the Class B felony and nine years as a
Range II multiple offender for the Class C felony. These sentences were
consecutive to each other and consecutive to a sentence from a prior conviction.
The defendant was found guilty on August 7, 1996 and sentenced on December
6, 1996. On October 16, 1997, the defendant filed a petition for post-conviction
relief which alleged that his trial counsel had promised he would pursue a direct
appeal of his sentence. Trial counsel filed no appeal. On August 14, 1998, the
trial court entered an order granting this delayed appeal from his sentences.
BACKGROUND
The first witness at trial, Joe Macleod, was a police officer assigned to the
19th Judicial Drug Task Force (DTF). Macleod testified that the DTF had
established credibility for the confidential informant participating in the instant
case by that informant’s previous participation in over 60 other investigations.
Macleod supervised both purchases from the defendant, and his testimony
described visual surveillance and other specifics of the investigation.
The informant testified that she ordered a gram of cocaine from the
defendant. After calling the defendant and placing the order, the informant met
the defendant in a parking lot and exchanged money for the cocaine. Several
days later, the informant called the defendant and ordered a “sixteenth,” or one-
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sixteenth of an ounce of cocaine. The defendant again met her at the parking lot
and exchanged the cocaine for money. The state presented both videotaped
and audiotaped evidence of the transactions to the jury.
At the sentencing hearing, the trial court noted that the defendant had
pleaded guilty in December 1994 to a Class B cocaine felony, receiving eight
years in Community Corrections as a Range I offender. The trial court also
noted the defendant’s Class E felony conviction for a Schedule VI violation in
1981.
Officer Lemley of the DTF testified at the sentencing hearing. He testified
that the defendant apparently held no regular jobs during Lemley’s two-year
tenure with the DTF. However, the defendant accumulated substantial assets,
including his residence and other realty; a race car; a “dually” pickup truck; a
Corvette; and approximately thirty-thousand dollars worth of tools.
The defendant testified at the sentencing hearing and claimed that he left
his last employer in 1992 with “numerous [sic] amounts of money that [he] did
not have to have.” He performed odd jobs and sold drugs to support some of his
fourteen children. The defendant testified that he had served approximately
eleven months on Community Corrections when he was arrested for the charges
in the instant case. His own cocaine problem “played a part” in his selling
cocaine.
ANALYSIS
Admission of Evidence
During the trial, the state’s proof comprised:
1. The testimony of Officer Macleod, establishing the DTF’s three-
year investigation of the defendant;
2. Officer Macleod’s testimony regarding procedure for
establishing confidential informant reliability;
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3. That officer’s testimony regarding the DTF policy of targeting
drug dealers, versus users, and regarding the defendant’s
assets; and
4. Testimony that the defendant was responsible for all crime in
Robertson County. 1
The defendant asserts that admission of this evidence constituted “serious,
substantial, egregious and fundamental errors which [sic] strike and destroy the
judicial proceedings,” and he also asserts that this evidence was totally irrelevant
and intended solely to “poison the jury.” See Tenn. R. Evid. 401, 402, 403. The
defendant did not, however, object to the contested evidence at trial. See Tenn.
R. App. P. 36(a) (This Court is not required to provide relief “to a party . . . who
failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.”); see also State v. Killibrew, 760 S.W.2d 228, 235
(Tenn. Crim. App. 1988) (applied Rule 36(a) when defendant failed to object to
the admission of evidence).
This issue is waived. The defendant did not file a motion for new trial
within thirty days of the order entering his sentence. See Tenn. R. Crim. P.
33(b); Tenn. R. Crim. P. 45(b); State v. Martin, 940 S.W.2d 567, 569 (Tenn.
1997) (The provision for filing a timely motion for new trial is mandatory and may
not be extended). “[T]he failure to timely file a motion for a new trial results in
the waiver of those issues which may result in the granting of a new trial.” State
v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989); see also Tenn. R.
App. P. 3(e) (“Provided, however, in all cases tried by a jury, no issue presented
for review shall be predicated upon error in the admission or exclusion of
evidence . . . unless the same was specifically stated in a motion for new trial;
otherwise such issues will be treated as waived.”). Further, the trial court’s Order
granting a delayed appeal restricts that appeal to the issue of the defendant’s
sentence and bars any consideration of evidentiary issues.
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The relevant testimony actually addressed the propensity for violence possessed by some of
the defe ndant’s s ons.
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The defendant asserts, however, that these allegedly erroneous
admissions affected his substantial rights and thereby merit our review. See
Tenn. R. Crim. P. 52(b) (“An error which [sic] has affected the substantial right of
the accused may be noted at any time . . . where necessary to do substantial
justice.”). A panel of this Court held that such a plain error review must be
predicated on an “especially egregious error that strikes at the fairness, integrity
or public reputation of judicial proceedings.” State v. Adkisson, 899 S.W.2d 626,
639 (Tenn. Crim. App. 1994). The defendant has not demonstrated that the
contested evidence reaches this standard: This evidence was not so unfairly
prejudicial as to “destroy the judicial proceedings.”
SENTENCING
The defendant also submits two challenges to his sentence. He asserts
that the trial court both erroneously enhanced his sentence and erroneously
imposed consecutive sentencing. When an accused challenges the length or
manner of service of a sentence, this Court reviews the record de novo “with a
presumption that the determinations made by the court from which the appeal is
taken are correct.” Tenn. Code Ann. § 40-35-401(d). The presumption of
correctness is contingent on the record indicating both the lower court’s reasons
for arriving at a sentencing decision and compliance with the statutory
sentencing guidelines and principles. See State v. Wilkerson, 905 S.W.2d 933,
934 (Tenn. 1995). The appellant bears the burden of showing that the
sentencing was improper. See Tenn. Code Ann. § 40-35-401(d) sentencing
comm’n comments; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App.
1996). The following considerations apply: (1) the evidence received at trial and
at 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) any statutory mitigating or
enhancement factors; (6) any statement made by the accused on his own behalf;
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and (7) the potential or lack of potential for rehabilitation or treatment. See
Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863
(Tenn. Crim. App. 1987).
Enhancement factors
We find no reversible error in the trial court’s application of three
enhancement factors to the defendant’s sentences: (1) “[P]revious history of
criminal conviction or criminal behavior in addition to those necessary to
establish the appropriate range”; (2) “a previous history of unwillingness to
comply with the conditions of a sentence involving release in the community”;
and (3) commission of the offenses while on release status from a prior felony
conviction. See Tenn. Code Ann. § 40-35-114 (1), (8), (13)(e). The defendant
contests the trial court’s applying enhancement factor (8), regarding “a previous
history of unwillingness to comply with the conditions of a sentence involving
release in the community.” Tenn. Code Ann. § 40-35-114(8). Commission of an
offense, and subsequent conviction for that offense, may not constitute a basis
for enhancing the sentence for that offense under factor (8). See State v.
Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995). Therefore, conviction for
the instant two offenses can not support enhancement of their sentences.
However, the defendant testified that he had used drugs in violation of his
Community Corrections sentence. This testimony properly invokes factor (8).
Further, the defendant admitted selling drugs “many times.” These multiple
sales, independent from the two transactions in the instant case, demonstrate
unwillingness to comply with community release.
The trial court assigned “very slight weight” to two findings: the
defendant’s testifying candidly and his providing for his family. See Tenn. Code
Ann. § 40-35-113 (13), (7). We respectfully disagree with the conclusion that
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these factors apply to the defendant’s benefit. First, a defendant’s testifying
under oath should not merit application of the “catch-all” mitigating factor for
speaking the truth. See Tenn. Code Ann. § 40-35-113 (13). Further, to invoke
factor (7), the statute explicitly requires that a defendant sought necessities for
his family when that defendant violated a law. The record does not establish that
Corvettes, real estate, and race cars were necessary to support the defendant’s
family.
Consecutive sentencing
A trial court in its discretion may impose consecutive sentencing on
multiple convictions under certain circumstances. See Tenn. Code Ann. § 40-
35-115. The trial court found, by a required preponderance of the evidence, that
the defendant “[was] a professional criminal who has knowingly devoted such
defendant’s life to criminal acts as a major source of livelihood.” Tenn. Code
Ann. § 40-35-115(b) (1). Although the record supports this specific finding, the
Tennessee Supreme Court has imposed a proportionality requirement for
consecutive sentencing:
[T]he imposition of consecutive sentences on an offender found to
be a dangerous offender requires, in addition to the application of
the general principles of sentencing, the finding that an extended
sentence is necessary to protect the public against further criminal
conduct by the defendant and that the consecutive sentences must
reasonably relate to the severity of the offenses committed.
State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). This holding
specifically addresses cases involving consecutive sentencing based on a
defendant’s classification as a dangerous offender. However, authority exists for
the proposition that these findings are necessary for consecutive sentencing on
other bases. See State v. Desirey, 909 S.W.2d 20, 33 (Tenn. Crim. App. 1995)
(required these additional findings for consecutive sentencing based on the trial
court finding the defendant a professional criminal). But see State v. Lane, No.
03C01-9607-CC-00259 (Tenn. Crim. App. filed June 18, 1997, at Knoxville)
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(appeal argued before Tennessee Supreme Court, January 1999) (“It is not
cogently clear, however, that Wilkerson applies to any case other than one
involving the sentencing of a dangerous offender under § 40-35-115(b)(4). The
opinion in Wilkerson may be fairly construed to apply only to consecutive
sentencing of dangerous offenders.”)
Because the trial court did not specifically articulate these findings, our
review is de novo regarding the Wilkerson requirements. The record contains
sufficient proof for a finding that consecutive sentencing is appropriate. The
defendant testified that he had sold cocaine on many occasions and that he was
“addicted” to selling cocaine. He continued to deal drugs while on Community
Corrections and conceded that he realized that each sale of cocaine “would
contribute to someone’s habit.” W e therefore conclude that consecutive
sentencing is necessary to protect the public from further criminal conduct by this
defendant. We further conclude that consecutive sentencing is reasonably
related to the severity of the offenses and is congruent with general principles of
sentencing. See State v. Baker, No. 01C01-9711-CC-00537 (Tenn. Crim. App.
Filed April 9, 1999, at Nashville).
CONCLUSION
We AFFIRM the trial court’s judgment.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
___________________________
DAVID H. WELLES, Judge
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____________________________
JOE G. RILEY, Judge
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