State of Tennessee v. Jermeil Ralph Tarter ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 24, 2006
STATE OF TENNESSEE v. JERMEIL RALPH TARTER
Direct Appeal from the Criminal Court for Sullivan County
No. S48596 Jerry Scott, Judge
No. E2005-01013-CCA-R3-CD - Filed March 8, 2006
The defendant, Jermeil Tarter, was convicted of one count of sale of more than .5 grams of cocaine
within one thousand feet of a school, one count of delivery of more than .5 grams of cocaine within
one thousand feet of a school, and one count of possession of more than .5 grams of cocaine within
one thousand feet of a school. The trial court initially merged the convictions for delivery and
possession of cocaine into the conviction for the sale of cocaine and then later dismissed the
convictions for delivery of cocaine and possession of cocaine. The trial court imposed a Range I
sentence of twenty years in the Department of Correction. In this appeal, the defendant asserts that
the evidence was insufficient to support the convictions, that the trial court erred by permitting the
surveillance tape to be admitted into evidence, and that the trial court erred by permitting the
prosecutor to vouch for the truthfulness of the state's witnesses. The state challenges on appeal the
trial court's ruling dismissing the conviction for possession of cocaine. The convictions and sentence
are affirmed. The judgment of the trial court dismissing the convictions for delivery and possession
of cocaine is reversed. The judgment of conviction for sale of more than .5 grams of cocaine is
modified to show that the convictions for delivery of more than .5 grams of cocaine and possession
of more than .5 grams of cocaine have been merged into one judgment.
Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed in part; Reversed in part;
Modified
GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT , JR., JJ., joined.
Larry R. Dillow, Kingsport, Tennessee, for the appellant, Jermeil Tarter.
Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and Joseph E. Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On November 14, 2003, Officer Freddie Ainsworth of the First Judicial District Drug Task
Force participated in an investigation conducted by the Second Judicial District Drug Task Force.
Officer Ainsworth, who was working undercover with a confidential informant, Doris Salyers,
testified that he was provided $100 in marked bills and directed to a residence on Sevier Street in
Kingsport. Other officers near the residence set up audio and video recording equipment. Upon
their arrival at the residence, Ms. Salyers approached a white male, asked for "Cathy," and learned
that she was not there. At that point, the defendant, a black male, approached them and Officer
Ainsworth asked the defendant for "a buck," which he described as street slang for "a Hundred
Dollars ($100.00) worth." According to the officer, the defendant then "pulled a medicine bottle out
of one of his pockets and he shook out . . . four rocks." Officer Ainsworth recalled that "[t]here was
still 20, 25 rocks . . . in the medicine bottle, the same color and shape as what he had put into my
hand." He gave the defendant $100 and then left. The officer later gave the substances to Agent
Eddie Nelson.
Afterward, Officer Ainsworth selected the defendant, a black male, from a photographic
lineup, explaining that he was ninety percent certain of the identification. He stated that later, when
he eventually saw the defendant in person at the preliminary hearing, he became one hundred percent
certain of his identification.
Officer Cliff Ferguson of the Kingsport Police Department, who had known the defendant
for approximately eight years and was familiar with his physical appearance, viewed the videotape
of the transaction and identified the defendant as the individual who sold cocaine to Officer
Ainsworth. Officer Ferguson also saw a digitally enhanced version of the videotape which "took
some of the glare off of" the images. He expressed certainty that the defendant was the perpetrator.
Officer Eddie Nelson of the Second Judicial District Drug Task Force, who had provided
Officer Ainsworth with money to make the controlled purchase, confirmed his receipt of the cocaine
from Officer Ainsworth. He recalled that he placed it in a sealed envelope and mailed it to the
Tennessee Bureau of Investigation Lab in Knoxville. Officer Nelson testified that at the request of
the assistant district attorney, he sent the original videotape recording of the transaction to the
Regional Organized Crime Information Center to have the quality enhanced.
Steven Hobbs of the Regional Organized Crime Information Center in Nashville testified that
he reviewed and digitized the videotape. He stated that he reduced the gamma settings in order to
remove some of the glare. Hobbs explained that he used a video editing system to isolate certain
frames of the video and create photographs.
Officer Bryan Bishop, Director of the Second Judicial District Drug Task Force, who
supervised the investigation, testified that he operated the surveillance equipment during the
transaction. He explained that he made no attempt to recover the "buy" money because he did not
want to compromise the "ongoing investigation."
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Celeste White, a forensic chemist with the Tennessee Bureau of Investigation, testified that
she received the package containing the rocks collected by Officer Nelson, weighed the substance,
and then used an ultraviolet spectrophotometer and an infrared spectrophotometer to determine its
chemical composition. Testing established that the substance was cocaine base and weighed .54
grams.
Tyler Fleming, Director of Student Services for Kingsport City Schools, testified that at the
time of the offenses, the New Horizon School, which housed an alternative school program and
several other programs, was located at 520 Myrtle Street. Jake White, an employee of the City of
Kingsport Geographic Information System Division, compiled a map which showed the New
Horizon School and shaded a one-thousand-foot buffer zone around the school. The map established
that the residence on Sevier Street was within one thousand feet of the New Horizon School. White
testified that the distance from the center of the New Horizon School building to the residence on
Sevier Street was 905 feet.
Doris Ann Salyers, who was called as a witness for the defense, testified that she was unable
to identify the individual who sold the drugs to Officer Ainsworth. It was her recollection that the
perpetrator was a black male wearing a hooded sweatshirt. During cross-examination by the state,
Ms. Salyers acknowledged that she had medical problems which affected her memory and her ability
to identify people, including her own family members.
I
The defendant asserts that the evidence is insufficient to support the convictions. He
specifically contends that the state failed to establish his identity as the perpetrator beyond a
reasonable doubt. On appeal, of course, the state is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their
testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier
of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the
evidence is challenged, the relevant question is whether, after reviewing the evidence in the light
most favorable to the state, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983). Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas
v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
Identity, of course, is an indispensable element. See White v. State, 533 S.W.2d 735, 744
(Tenn. Crim. App. 1975). Our law provides that identification of the perpetrator of a crime may be
accomplished by either direct or circumstantial evidence, or both. State v. Thompson, 519 S.W.2d
789, 793 (Tenn. 1975). The determination of identity is a question of fact for the jury after
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consideration of all competent evidence. See Biggers v. State, 411 S.W.2d 696, 697 (Tenn. 1967);
Sanders v. State, 281 S.W. 924, 924 (Tenn. 1925); State v. Strickland, 885 S.W.2d 85, 87 (Tenn.
Crim. App. 1993); State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).
At the time of the offenses, Tennessee Code Annotated section 39-17-417 provided as
follows:
(a) It is an offense for a defendant to knowingly:
(1) Manufacture a controlled substance;
(2) Deliver a controlled substance;
(3) Sell a controlled substance; or
(4) Possess a controlled substance with intent to manufacture, deliver or sell
such controlled substance.
....
(c) A violation of subsection (a) with respect to:
(1) Cocaine is a Class B felony if the amount involved is point five (.5)
grams or more of any substance containing cocaine and, in addition thereto, may be
fined not more than one hundred thousand dollars ($ 100,000) . . . .
Tenn. Code Ann. § 39-17-417(a), (c) (2003). Tennessee Code Annotated section 39-17-432 provides
that a "violation of § 39-17-417 . . . that occurs . . . within one thousand feet (1000') of the real
property that comprises a public or private elementary school, middle school or secondary school
shall be punished one (1) classification higher than is provided in § 39-17-417." Tenn. Code Ann.
§ 39-17-432(b) (2003).
The evidence adduced at trial established that Officer Ainsworth and Ms. Salyers went to a
residence on Sevier Street for the purpose of making a controlled purchase of cocaine. While at the
residence, they were approached by a black male who asked if he could be of assistance. Ms. Salyers
and Officer Ainsworth indicated to the individual that they wanted to purchase $100 worth of
cocaine. The individual then removed a medicine bottle from his pocket, shook four pieces of a
rock-like substance into Officer Ainsworth's hand, and accepted $100 in cash. Later, Officer
Ainsworth identified the defendant from a photographic lineup. While Officer Ainsworth conceded
that he was only ninety percent sure of the identification when he viewed the photographic array, he
testified that upon seeing the defendant at the preliminary hearing he became one hundred percent
positive that the defendant was the perpetrator. Officer Ferguson, who had known the defendant for
some eight years, testified that he observed the videotape of the transaction and recognized the
defendant as the perpetrator. Testing established that the substance provided to Officer Ainsworth
was .54 grams of cocaine base. The jury accredited the testimony of the state's witnesses, as was its
prerogative. See State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). In our view,
the evidence was sufficient for a rational trier of fact to have found beyond a reasonable doubt that
the defendant committed the crimes.
II
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The defendant next asserts that the trial court erred by denying his motion to suppress the
videotape of the drug transaction. He contends that the quality of both the original videotape and
the enhanced version is so poor that the trial court should not have admitted them into evidence. In
response, the state submits that the defendant has waived this issue by failing to include a copy of
the hearing on the motion to suppress in the record on appeal. In the alternative, the state asserts that
the trial court did not err by admitting the videotape.
Initially, the defendant has failed to include a transcript of the hearing on the motion to
suppress. It is the duty of the appellant to prepare a complete and accurate record on appeal. Tenn.
R. App. P. 24(b). The failure to prepare an adequate record for review of an issue results in a waiver
of that issue. Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). Furthermore, the
defendant failed to present this issue in his motion for a new trial. It is well-established that an
appellate court may not consider issues not raised in a motion for new trial unless they would result
in dismissal of the case. See Tenn. R. App. P. 3(e) (stating that "in all cases tried by a jury, no issue
presented for review shall be predicated upon error in the admission or exclusion of evidence, jury
instructions granted or refused, . . . or other ground upon which a new trial is sought, unless the same
was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived");
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes the right
to argue on appeal any issues that should have been presented in a motion for new trial); State v.
Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Moreover, the record establishes that the
defendant did not, in fact, raise the issue of the quality of the videotape in his motion to suppress.
Finally, the defendant not only failed to object to the admission of the videotape at trial but
confirmed that he had no objection to the admission of either the original videotape or enhanced
version. In consequence, the defendant would not be entitled to relief on this issue. Tenn. R. App.
P. 36(a) ("Nothing in this rule shall be construed as requiring relief be granted to a party responsible
for an error or who failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.").
Had the defendant preserved the issue for our review, however, he would not be entitled to
relief. The content of the videotape of the transaction is obviously relevant. In addition, the
probative value of this evidence substantially outweighs the danger of unfair prejudice. There was
no objection to the authenticity of the videotape. That portions of the videotape might have been
affected by the glare of the sun does not affect its admissibility. "Provided that a tape recording is
properly authenticated, the incompleteness of it goes only to its weight and not to its admissibility."
State v. Harris, 637 S.W.2d 896, 898 (Tenn. Crim. App. 1982); see also State v. Beasley, 699
S.W.2d 565, 569 (Tenn. Crim. App. 1985); Aldridge v. State, 562 S.W.2d 216, 218 (Tenn. Crim.
App. 1977). The trial court did not err by admitting the videotape into evidence.
III
Finally, the defendant asserts that the trial court erred by permitting the prosecutor to vouch
for the truthfulness of the state's witnesses during his closing argument. The state submits that the
prosecutor's statements were not improper.
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Trial courts have substantial discretionary authority in determining the propriety of final
argument. Although counsel is generally given wide latitude, courts must restrict any improper
argument. Sparks v. State, 563 S.W.2d 564, 567 (Tenn. Crim. App. 1978). Generally speaking,
closing argument "must be temperate, must be predicated on evidence introduced during the trial of
the case, and must be pertinent to the issues being tried." State v. Sutton, 562 S.W.2d 820, 823
(Tenn. 1978). To merit a new trial, however, the argument must be so inflammatory or improper as
to affect the verdict. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). In Judge v. State, this
court articulated the factors to be considered in making that determination:
(1) the conduct complained of viewed in the context and the light of the facts and
circumstances of the case;
(2) the curative measures undertaken by the court and the prosecution;
(3) the intent of the prosecutor in making the improper statements;
(4) the cumulative effect of the improper conduct and any other errors in the record;
and
(5) the relative strength or weakness of the case.
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).
Most restrictions during final argument are placed upon the state. That is based in great
measure upon the role of the prosecutor in the criminal justice system:
[The prosecutor] is the representative not of an ordinary party to a controversy, but
of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the twofold aim of which is
that guilt shall not escape or innocence suffer. He may prosecute with earnestness
and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not
at liberty to strike foul ones. It is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means to
bring about a just one.
It is fair to say that the average jury, in a greater or lesser degree, has
confidence that these obligations, which so plainly rest upon the prosecuting attorney,
will be faithfully observed. Consequently, improper suggestions, insinuations, and,
especially, assertions of personal knowledge are apt to carry much weight against the
accused when they should properly carry none.
Berger v. United States, 295 U.S. 78, 88 (1935); see also Judge, 539 S.W.2d at 344-45. Thus, the
state must refrain from argument designed to inflame the jury and should restrict its commentary to
matters in evidence or issues at trial. The prosecutor must not express a personal belief or opinion,
but whether that qualifies as misconduct often depends upon the specific terminology used. For
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example, argument predicated by the words "I think" or "I submit" does not necessarily indicate an
expression of personal opinion. United States v. Stulga, 584 F.2d 142, 147 (6th Cir. 1978). The
prosecution is not permitted to reflect unfavorably upon defense counsel or the trial tactics employed
during the course of the trial. See Dupree v. State, 410 S.W.2d 890, 891-92 (Tenn. 1967); Moore
v. State, 17 S.W. 30, 35 (Tenn. 1929); Watkins v. State, 203 S.W. 344, 346 (Tenn. 1918);
McCracken v. State, 489 S.W.2d 48, 50 (Tenn. Crim. App. 1972). Although there may be no
commentary on the consequences of an acquittal, the prosecution may point out the gravity of a
particular crime and emphasize the importance of law enforcement. See State v. Dakin, 614 S.W.2d
812, 815 (Tenn. Crim. App. 1980); Bowling v. State, 458 S.W.2d 639, 641 (Tenn. Crim. App. 1970).
This court has observed that there are five generally recognized areas of prosecutorial
misconduct related to closing argument:
1. It is unprofessional conduct for the prosecutor intentionally to misstate the
evidence or mislead the jury as to the inferences it may draw.
2. It is unprofessional conduct for the prosecutor to express his personal
belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of
the defendant.
3. The prosecutor should not use arguments calculated to inflame the
passions or prejudices of the jury.
4. The prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence, by injecting issues broader than the
guilt or innocence of the accused under the controlling law, or by making predictions
of the consequences of the jury's verdict.
5. It is unprofessional conduct for a prosecutor to intentionally refer to or
argue facts outside the record unless the facts are matters of common public
knowledge.
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003) (citations omitted).
During his closing argument, the prosecutor made the following remarks concerning Officer
Ainsworth's testimony:
He selected the [d]efendant's photograph, but he said, "I'm ninety percent sure." This
isn't a man that's just going to be careless with the facts and just say, "Okay, I know
what the team line is. The time line is this is a man that did it, so I jump on board
and even though I'm ninety percent, I just jump on board." No. He said, "No, I was
ninety percent at that point in time." Agent Ainsworth, did anybody pressure you to
say you were a hundred percent? "Nobody ever pressured me.["] Mr. Ainsworth, did
you have an opportunity to see the [d]efendant in person again? Yes, I did. What at
point in time? ["]I was a hundred percent certain this is the guy." Yesterday in
[c]ourt, "Are you a hundred percent certain now?" "I am a hundred percent certain
this is the guy." Any doubt in your mind? "No, sir. No doubt in my mind." That's
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the testimony of somebody as he told you, that, "Yes, I want to see convictions. I
want to identify people that are selling drugs," but he also said, "but I also . . . my
focus or why I'm here is to tell you the truth," and he told you the truth. This is the
person that sold him cocaine. . . .
At that point, defense counsel objected to the remarks as improper vouching. The trial court
overruled the objection.
In our view, the prosecutor's statement that Officer Ainsworth told the truth amounted to
improper vouching. Expressions of personal opinion by the prosecutor are generally prohibited as
a form of unsworn, unchecked testimony which tends to exploit the influence of the prosecutor's
office and undermine the objective detachment that should separate a lawyer from the advocated
cause. See Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim. App. 1978). When considered in
the context of the entire final argument, which was generally temperate and otherwise appropriate,
however, it does not appear that the comment, which was isolated, had any effect on the jury's
verdict. Thus, any error would qualify as harmless. See Tenn. R. App. P. 36(b); Tenn. R. Crim. P.
52(a).
IV
The state has also raised a claim on appeal. It submits that the trial court erred by dismissing
the conviction for possession of more than .5 grams of cocaine. The state contends that the
conviction for possession of cocaine related to the pieces of crack cocaine that Officer Ainsworth
observed inside the medicine bottle rather than the cocaine sold to Officer Ainsworth. The state does
not challenge the dismissal of the conviction for delivery of more than .5 grams of cocaine. The
defendant has not addressed the issue.
The record establishes that at the sentencing hearing, the trial court merged the convictions
for delivery of cocaine and possession of cocaine into the conviction for sale of cocaine over the
state's objection. The state challenged the trial court's ruling at the hearing on the motion for a new
trial and the trial court ruled that the delivery and possession convictions should be dismissed rather
than merged:
The only cocaine that we have here is the cocaine that was actually sold. That's the
only quantity of cocaine that was sold, and I held that all these offenses would be
merged into the sale of cocaine charge.
State of Tennessee v. William F. Cartwright, 2004, Tenn. Crim. Appeals,
Lexis 427, holds that just merging is not sufficient; that, actually, I need to just enter
one Judgment of Conviction for the sale, so not only must the [s]tate's [m]otion be
over-ruled, the [c]ourt sua sponte is actually going to dismiss . . . the count charging
delivery of a half . . . gram of cocaine within a thousand (1,000) feet of a school, and
the charge of possession of more than five-tenths of a gram of cocaine within a
thousand (1,000) feet of a school, and leave the only conviction being the conviction
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for the sale of five-tenths of a gram of cocaine within one thousand (1,000) feet of
a school, as dictated by State v. William F. Cartwright . . . . I think that's . . . the law
by which I'm bound in this case, and there's not any question, but there can be only
one conviction. It's more than merger. It's just the fact that the other two convictions
are dismissed; it's sua sponte, and the [s]tate's [m]otion is over-ruled.
Citing State v. Jose D. Holmes, No. 02C01-9411-CR-00251 (Tenn. Crim. App., at Jackson,
Nov. 22, 1995), the state contends that a dismissal of the possession count was improper because the
possession count related to the additional crack cocaine in the medicine bottle. In Holmes, the
defendant was arrested during an undercover drug buy in Memphis. The defendant initially
delivered two rocks of crack cocaine to an undercover detective who was waiting in a nearby car.
Holmes was then apprehended after a brief chase. After Holmes's arrest, officers searched his car
and discovered an additional bag containing what was later determined to be crack cocaine. This
court ruled that separate convictions for sale of cocaine and possession of cocaine did not violate
double jeopardy principles because "[t]wo separate offenses occurred, involving two distinct
quantities of cocaine." Holmes, slip op. at 7. In our view, this case is distinguishable from Holmes.
In Holmes, there was sufficient proof to establish that the defendant sold an amount of a substance
that tested positive for cocaine and possessed a separate amount of a substance that tested positive
for cocaine. In this case, however, the only proof that the defendant may have possessed an amount
of cocaine in addition to that sold to Officer Ainsworth was the testimony that there were other
"rocks" in the defendant's medicine bottle. There was no proof to establish the weight of the
additional "rocks" or that they, in fact, contained cocaine. The proof in this case is simply
insufficient to support separate convictions for sale and possession of more than .5 grams of cocaine.
If, as the state contends, the conviction for possession of cocaine is based upon the cocaine in the
medicine bottle, that conviction should be reversed and dismissed. In our view, however, the record
does not support the state's assertion. The trial court concluded that "the only cocaine that we have
is the cocaine that was actually sold." The record supports this conclusion. Because the conviction
for possession of cocaine conviction relates to the same cocaine as the conviction for sale of cocaine,
separate convictions for these offenses would violate double jeopardy principles.
Although separate convictions are violative of double jeopardy principles, the trial court
should not have dismissed the convictions for delivery and possession of cocaine. In State v.
Addison, 973 S.W.2d 260 (Tenn. Crim. App. 1997), this court observed that dismissal is not the only
remedy available when convictions violate double jeopardy principles:
Moreover, there is no need to "dismiss, vacate," or "strike," a particular "conviction"
if what is meant by the term "conviction" is the return of the jury verdict of guilt.
Rather, the jury verdict stands as a legitimate finding of fact and law which the trial
court should preserve by merging the same offense counts into one judgment of
conviction . . . .
973 S.W.2d at 267. Thus, the trial court should not have dismissed the convictions but instead
should have entered a single judgment of conviction for sale of more than .5 grams of cocaine,
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noting in that judgment that the convictions for delivery and possession of cocaine were merged into
that offense. Although the trial court obviously intended to dismiss the convictions for delivery and
possession of cocaine, the record on appeal contains separate judgments for those convictions.
Accordingly, the convictions and sentence are affirmed. The judgment of the trial court
dismissing the convictions for delivery of more than .5 grams of cocaine and possession of more than
.5 grams of cocaine is reversed. The judgment of conviction for the sale of more than .5 grams of
cocaine is modified to show that the convictions for delivery and possession of cocaine have been
merged into that offense.
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GARY R. WADE, PRESIDING JUDGE
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