State v. Bowen ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. 03C01-9612-CR-00460
Appellee, )
) JOHNSON COUNTY
v. )
) Hon. Lynn W. Brown
JIMMY BOWEN )
) (Poss. of Contraband in Penal Inst.)
Appellant. )
)
FOR THE APPELLANT FOR THE APPELLEE
Laura Rule Hendricks John Knox Walkup
Eldridge, Irvine & Hendricks Attorney General & Reporter
606 W. Main Street, Suite 350
P.O. Box 84 Sandy Copous Patrick
Knoxville, TN. 37901-0084 Assistant Attorney General
2nd Floor Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0943
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN. 37601
Lisa D. Nidiffer
Assistant District Attorney General
Unicoi County Courthouse
Erwin, TN. 37650
OPINION FILED:__________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Jimmy Bowen, appeals as of right his conviction and sentence
following a jury trial in the Criminal Court of Johnson County. The appellant was
indicted by the Johnson County Grand Jury for the knowing possession of contraband,
to wit: marijuana, in a state penal institution where prisoners are quartered, without the
express written consent of the institution’s chief administrator, a Class C felony. See
Tenn. Code Ann. § 39-16-201 (1991 repl.). Following his conviction, the appellant
was ordered to pay a five thousand ($5,000) dollar fine and serve six years in the
Tennessee Department of Correction as a Range I standard offender. 1 The sentence
was ordered to run consecutive to a seven-year sentence the appellant was then
serving for convictions he received in 1993.
The judgment of the trial court is affirmed.
The appellant raises five issues in this appeal. He contends that: (1) The trial
court improperly denied his motion for a mistrial after the prosecution elicited witness
testimony concerning the appellant’s invocation of his right to remain silent; (2) The
State failed to prove an essential element of the charged offense concerning the
express written consent of the prison’s chief administrator; (3) His conviction and
sentence for the contraband possession, following administrative discipline for the
same offense, violated double jeopardy; (4) The State arbitrarily selected the appellant
for prosecution in violation of equal protection; and (5) The trial court erred in ruling
that the chain of custody over the package marked as exhibit one was sufficient to
allow it into evidence.
FACTUAL BACKGROUND
The appellant was an inmate at the Northeast Correctional Center (NECC) in
Johnson City. On February 19, 1995, he received a visit from his wife in the NECC
1
At the sent enc ing he aring , the tr ial cou rt ack now ledge d tha t the a ppe llant h ad m ultiple
convictions dating back to 1967 and should be sentenced as a Range II or III offender. However, the
State failed to provide proper notice as to those past convictions before the sentencing hearing. The trial
court, therefore, reluctantly sentenced the appellant as a Range I standard offender. That sentencing
range is r eflected in the corre cted jud gme nt entere d on Au gust 8, 19 96.
2
visiting gallery. During the visit, Sergeant Pat Carper observed the appellant’s wife
reach under her blouse, pull out a small wrapped package, and secretly hand it to the
appellant. Sergeant Carper immediately directed another NECC employee, Officer
David Musser, to apprehend the appellant in the gallery and take him to the strip
search room. On the way to the search room, Officer Musser observed the appellant
attempt to hand the wrapped package to other inmates before he threw it onto a
vending table. Officer Musser, thereafter, obtained the package and discovered that it
contained a plant-like material wrapped in black electrical tape. He and Sergeant
Carper delivered the package to internal affairs at the NECC for field testing. 2
At trial, Lieutenant Randy Lee, an officer with internal affairs at NECC, testified
that he received the package from Officer Musser and Sergeant Carper. Lee stated
that after he obtained the package, he sent it directly to the TBI Crime Lab in Knoxville
for field testing. When the tests were concluded, Lee recovered the package along
with a report indicating that the plant-like material was 29.8 grams of marijuana.
Lee testified that the package, admitted into evidence as exhibit one, matched the
package he sent to the TBI Lab.
Celeste White, a chemist for the TBI Crime Lab, testified for the State
concerning the testing and handling of the marijuana package. White stated that she
received the package from Lieutenant Lee on February 27, 1995. Upon receipt at the
crime lab, the package was given a TBI label containing a lab number, the appellant’s
name, the date received, and White’s initials. The package was then stored in an
evidence vault until the field tests were conducted. White testified that she tested the
plant material and discovered that it was approximately 29.8 grams of marijuana. She
stated that after the tests were concluded, the package was returned to the NECC
along with a report indicating the test results.
2
At trial, the State introduced into evidence a clear plastic bag containing a plant-like material
and black electrical tape. The bag was admitted and marked as exhibit one. Sergeant Carper testified
that the package in exhibit one was similar to the taped object taken from the appellant. Officer Musser
also testified and indica ted that ex hibit one wa s identical to th e pack age he took fro m the appellant.
3
ANALYSIS
The appellant first contends that he was entitled to a mistrial after the
prosecutor elicited testimony concerning the appellant’s invocation of his right to
remain silent.
This issue is without merit.
At trial, Lieutenant Lee testified that he met with the appellant after the package
of marijuana was discovered and read the appellant his Miranda rights. Lee further
indicated that the appellant signed a rights-waiver form. Over the defense counsel’s
objection, the prosecutor continued a line of questioning in which Lieutenant Lee
ultimately stated that, during the preliminary investigation, the appellant “had no
statement to make whatsoever.”
Following Lee’s testimony, the defense counsel moved for a mistrial. The trial
court denied the defense motion and chose to administer a special jury instruction to
remedy the prosecutor’s error. The trial court instructed the jury as follows:
Members of the Jury, the law in this country has been for two hundred
years that that you cannot consider someone’s silence against them. In
other words, if someone chooses to not make a statement just as if they
choose to not testify on their behalf if they’re a defendant in a trial, you
can’t consider that for any purpose whatsoever ever, either for them or
against them. And, the district attorney should should not have gotten
anything about this in the record. It was improper. And so, first, I I must
instruct you that you are not to consider whatsoever, certainly you’re not
to consider against Mr. Bowen if if you find that that he chose not to talk
to the investigator because everybody’s got that right. If an investigator
walks up to you and asks you about something and you’re got a right to
say, ‘sorry. I don’t want to talk about it. Go prove your case and do it
whatever way you want to, but I’m not going to talk to you.’ And, that’s
been the law of the land for good reason for hundreds of years.
After giving the jury instruction, the trial court polled each juror to determine if
he or she could completely disregard the testimony concerning the appellant’s silence.
Only one of the twelve jurors expressed difficulty in following the trial court’s
instruction. The trial judge acknowledged the juror’s hesitancy and took special care
to thoroughly question and instruct the juror. After an extensive open-court interview,
each juror assured the trial court that the testimony concerning the appellant’s silence
4
would be disregarded. The trial court determined that a mistrial was unnecessary.
The decision whether to grant a mistrial is within the sound discretion of the trial
court and will not be overturned on appeal unless there was an abuse of that
discretion. See State v. Seay, 945 S.W.2d 755, 764 (Tenn. Crim. App. 1996); State v.
Jones, 733 S.W.2d 517, 522 (Tenn. Crim. App. 1987). A mistrial is usually
appropriate in a criminal case only where there is a “manifest necessity” to correct
damage done to the judicial process when some event has occurred which precludes
an impartial verdict. See Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App.
1977). The burden of demonstrating a “manifest necessity” lies with the appellant.
In this case, we find that the trial court exercised proper discretion in denying
the appellant’s motion for a mistrial. Although we agree that the prosecutor acted
improperly in eliciting testimony concerning the appellant’s silence, we find that the
trial court’s curative instruction adequately remedied any possible prejudice from the
improper testimony. The appellant has failed to demonstrate a manifest necessity
sufficient to warrant a mistrial.
II.
The appellant next contends that the State failed to prove an essential element
of the charged offense, to wit: that the prison’s chief administrator had not given
express written consent for the appellant to possess marijuana.
Although this issue is extremely close, we find it to be without merit.
The appellant’s argument turns on whether the evidence at trial was sufficient
to sustain his conviction. When an appellant challenges the sufficiency of the
convicting evidence, we must review the evidence in the light most favorable to the
prosecution in determining whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). We do not reweigh or re-
evaluate the evidence and are required to afford the State the strongest legitimate
5
view of the proof contained in the record as well as all reasonable and legitimate
inferences which may be drawn therefrom. See State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to be
given to the evidence, and any factual issues raised by the evidence are resolved by
the trier of fact, not this Court. See Cabbage, 571 S.W.2d at 835. A guilty verdict
rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. See State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
An appellant challenging the sufficiency of the evidence has the burden of
demonstrating to this Court why the evidence is insufficient to support the verdict
returned by the trier of fact. This Court will not disturb a verdict of guilt for lack of
sufficient 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 appellant guilty beyond a reasonable doubt. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
In this case, a jury convicted the appellant of marijuana possession in a state
penal institution without the express written consent of the prison’s chief administrator.
The applicable statute provides that, “[i]t is unlawful for any person to [k]nowingly
possess any of the materials prohibited in subdivision (a)(1) while present in any penal
institution where prisoners are quartered or under custodial supervision without the
express written consent of the chief administrator of the institution.” See Tenn. Code
Ann. § 39-16-201(a)(2) (Supp. 1996). Subsection (a)(1) of the statute includes
controlled substances in the list of prohibited materials.
The appellant contends that the convicting evidence was insufficient because
the State failed to prove that he possessed the marijuana without the express written
consent of the prison’s chief administrator. Although we acknowledge that direct
testimony from the NECC warden would have prevented any issue in this regard, we
6
find that the essential element concerning the lack of express written consent was
sufficiently proved by circumstantial evidence.
Circumstantial evidence includes collateral facts and circumstances which do
not directly prove the fact in issue but from which the fact may be logically inferred.
See State v. Thompson, 519 S.W.2d 789, 792-93 (Tenn. 1975). We find that the
record in this case contains several facts and circumstances sufficient to prove that
the prison’s chief administrator had not given express written consent to the
appellant’s possession of marijuana.
First, the record reflects that the appellant’s wife surreptitiously handed the
appellant a package tightly wrapped and concealed in black electrical tape. When
NECC prison guards acted to apprehend the appellant and obtain the hidden
package, the appellant tried to discard the package by passing it off to other prison
inmates. The actions of the appellant and his wife in attempting to smuggle the
package into the NECC are clearly inconsistent with the notion that the appellant had
express written consent to possess marijuana. From that evidence, a reasonable
person could conclude that the appellant did not have the warden’s express written
consent to possess the package of marijuana. See State v. Jimmy Cullop, Jr., No.
03C01-9607-CR-00281 (Tenn. Crim. App., at Knoxville, March 18, 1997).
Moreover, at the time of the appellant’s offense, marijuana was a Schedule II
controlled substance which had no legal use in the State of Tennessee. See Tenn.
Code Ann. § 39-17-408 (6)(A) (1991 repl.). 3 It is almost inconceivable that a prison
administrator would give permission for an inmate to possess a totally illegal
substance in prison. We, therefore, conclude that the jury was justified in finding
3
The T ennes see C ode co ntinues to treat m arijuana a s a Sch edule II co ntrolled su bstanc e. See
Ten n. Co de A nn. § 39-1 7-40 8 (6)( A) (1 997 ). Un der th e Te nne sse e Co de, a cont rolled subs tanc e is
listed in Schedule II if the commissioner of health finds that: (1) the substance has a high potential for
abu se; (2 ) it has a cur rently a cce pted me dica l use in treatm ent in the U nited State s, or c urre ntly
accepted medical use with severe restrictions; and (3) the abuse of the substance may lead to sever
psychic o r physical de pende nce. See Tenn. Code Ann. § 39-17-407 (1997). Tennessee Code
Annotated section 39-17-408 (6)(A) treats marijuana as a Schedule II controlled substance “only for the
purposes enumerated in the Controlled Substances Therapeutic Research Act, compiled in title 68,
cha pter 5 2" of th e Te nne sse e Co de. H owe ver, th e Ge nera l Ass em bly rep ealed chap ter 52 of title 6 8 in
1992. See Tenn . Code A nn. §§ 68 -52-101 -- 107 (rep ealed 19 92).
7
beyond a reasonable doubt that the appellant possessed contraband in a state penal
institution without the express written consent of the prison’s chief administrator.
III.
The appellant next contends that his conviction and sentence for the
possession of contraband in the State penal institution violated double jeopardy. He
argues that the administrative discipline he received from the Tennessee Department
of Correction, prior to trial, precluded the State from prosecuting him thereafter for the
same offense.
This issue is without merit.
Following the discovery of marijuana in the appellant’s possession, the
appellant received administrative discipline by prison authorities at the Tennessee
Department of Correction (“TDOC”). 4 The appellant relies on the decision in United
States v. Halper, 490 U.S. 435, 109 S. Ct. 1892 (1989) to assert that his prosecution
and conviction for the possession of contraband, following administrative discipline for
the same offense, placed him in double jeopardy.
The appellant’s reliance on Halper is misplaced. In Halper, the United States
Supreme Court addressed whether the imposition of a $130,000 civil penalty for
Medicare fraud, following a criminal conviction for the same offense, violated double
jeopardy. See 109 S. Ct. at 1896. The respondent in Halper had been convicted in
criminal proceedings before the Government filed a civil suit against him for the same
offense. See id. The Court held that a $130,000 liability in the civil suit constituted a
second punishment because the penalty amount was disproportionate to the actual
harm caused by the respondent’s actions. See id. at 1904. The Court, therefore, held
4
The record contains evidence from a pre-trial hearing in which the appellant’s counsel argued
that th e app ellant ’s upc om ing tria l was selec tive pr ose cutio n in vio lation of eq ual pr otec tion a nd do uble
jeopardy. At that hearing, Lieutenant Randy Lee testified that the appellant received three days of
segregated confinement as administrative discipline for the marijuana possession. Lieutenant Lee
further tes tified that adm inistrative disc ipline at the N ECC is impo sed by a T DOC Disciplinary B oard.
Accor ding to Lieu tenant Le e, the Disc iplinary Board never ad ds an a dditional se ntence or jail time to
what the inmate is currently serving. Instead, disciplinary measures include warnings, restrictions of
privileges, a ssignm ents of e xtra work duty, and se gregate d confin eme nt.
8
that the civil penalty violated double jeopardy.
The Supreme Court’s decision in Halper is not applicable to the facts in the
appellant’s case. Unlike the respondent in Halper, the appellant was not subjected to
liability in two separate judicial proceedings. To the contrary, the appellant was merely
disciplined by administrative authorities at the TDOC before his trial in the criminal
court.
It is well settled in Tennessee that administrative proceedings by state prison
authorities do not place defendants in “jeopardy” within the meaning of the Double
Jeopardy Clause. See Turner v. Gore, 175 S.W.2d 317, 319 (Tenn. 1943); Ray v.
State, 577 S.W.2d 681, 682 (Tenn. Crim. App. 1978); Terry Davis v. State, No.
03C01-9610-CR-00358 (Tenn. Crim. App., at Knoxville, June 12, 1997). Therefore,
we conclude that the administrative discipline in this case did not preclude the State
from prosecuting the appellant for the same offense.
IV.
The appellant next contends that the State arbitrarily selected him for
prosecution in violation of his equal protection rights. The appellant argues that the
NECC warden arbitrarily determines which cases are referred to the district attorney
for prosecution.
This issue is without merit.
The law in Tennessee is well settled that state officials enjoy broad discretion in
determining what cases are selected for prosecution. See Cooper v. State, 847
S.W.2d 521, 536 (Tenn. Crim. App. 1992); Yearwood v. State, 455 S.W.2d 612, 617
(Tenn. Crim. App. 1970). That discretion does not violate the principles of equal
protection unless the choice to prosecute is “deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary classification.” See Oyler v. Boles,
368 U.S. 448, 456 (1962).
9
In this case, the record is devoid of any evidence demonstrating that the
warden at the NECC arbitrarily selects cases to be referred for prosecution. To the
contrary, at a pre-trial hearing, Warden Howard Carlton of the NECC testified that he
considers specific factors before deciding whether to refer a case to the district
attorney. Warden Carlton stated that he considers whether the case involves a felony
and whether there are sufficient facts for the district attorney to present in criminal
proceedings. Warden Carlton further stated that criteria such as an inmate’s race,
religion, or ethnic origin is never considered.
We find that the discretion exercised by the NECC warden does not violate the
principles of equal protection. The appellant’s claim that his prosecution violated the
Equal Protection Clause is without merit.
V.
The appellant next contends that the chain of custody over the package
marked as exhibit one was insufficient to allow it into evidence.
This issue is without merit.
During the direct examination of Sergeant Carper, the prosecution introduced a
clear plastic bag, marked as exhibit one, containing a plant-like material with black
electrical tape. The record reflects that the appellant failed to object to the admission
of the plastic bag at trial. Therefore, in this appeal, the appellant has waived any
challenge to the admission of the package into evidence.
Moreover, even if the issue were properly preserved for appeal, we find that the
State established legally sufficient chain of custody over the testing and handling of
the package. We conclude that the trial court exercised proper discretion in allowing
the package into evidence.
Based upon the foregoing, the judgment of the trial court is affirmed.
10
____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
___________________________
GARY R. WADE, JUDGE
___________________________
PAUL G. SUMMERS, JUDGE
11