State v. Maurice Shaw ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1999
FILED
October 21, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9811-CC-00363
) Cecil Crowson, Jr.
Appellate Court Clerk
Appellee, )
) TIPTON COUNTY
V. )
)
) HON. JOSEPH H. WALKER, JUDGE
MAURICE SHAW, )
) (POSSESSION OF COCAINE
Appe llant. ) WITH INT ENT T O DEL IVER)
FOR THE APPELLANT: FOR THE APPELLEE:
JASON G. WHITWORTH PAUL G. SUMMERS
Hotel Lindo Building, Suite 201 Attorney General & Reporter
114 W. Liberty Avenue
P.O. Box 846 PATRICIA C. KUSSMANN
Covington, TN 38019-0846 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
ELIZABETH T. RICE
District Attorn ey Ge neral
JAMES W. FREELAND, JR.
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
On July 7, 1997, the Tipton County Grand Jury indicted Appellant Maurice
Shaw for one count of possession of cocaine and one count of possession of .5 or
more grams of cocaine with intent to deliver. After a jury trial on March 10, 1998,
Appellant was convicted of posse ssion of .5 or more grams of cocain e with intent to
deliver. On May 11, 1998, the trial court sentenced Appellant as a Range I standard
offender to a term of nine years in the Tennessee Department of Correction.
Appellant challenges his conviction, raising the following issues:
1) whether the evidence was sufficient to support Appellant’s conviction;
2) whether Appellant’s conviction was invalid because it was based on the
uncorroborated testimony of an accomplice; and
3) whe ther A ppella nt rece ived ine ffective a ssista nce o f coun sel.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
K.C. We bb testified that on F ebruary 27, 199 7, Appe llant drove h is vehicle to
W ebb’s house. Appellan t then a sked We bb to a ccom pany h im on a drive to his
father’s house . At some point during the drive, Appellant told W ebb that they we re
being followed by the police. Appellant then pulled into the parkin g lot of S parky ’s
Exxon.
Webb testified that as Appellant began opening the door to exit the vehicle,
Appellant took a bottle containing crack cocaine out of his pants pocket and he
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tossed it to Webb. Webb then tossed the bottle back to Appellant, but he did not
actually see where the bottle landed.
Webb testified that he was charged with possession of cocaine as a result of
this incident. Webb also testified that he made a deal with the State in which he was
allowed to plead guilty to misd emean or possess ion in return for his test imon y at trial.
Depu ty Shannon Beasley of the Tipton County Sheriff’s Department testified
that while he was in his patrol vehicle on February 27, 1997, he obse rved a vehicle
with a license plate number that he had been instructed to be on the looko ut for.
Shor tly thereafte r, Beasley learned that the license plate w as registered for a
different vehicle than the one that it was on. After learning this information, Beasley
stopped the vehicle for a registration violation. When Beasley approached the
vehicle, he saw that Appellant wa s the driver and W ebb was th e passen ger.
Beasley testified that at this point, Appellant exited the vehicle and began
walking toward a store. Be asley calle d Appe llant back to the veh icle and asked for
his driver’s license. Beasley testified that Appellant was “extremely nervous” and
“[h]is hand was shaking uncontrollably ” when he displayed his driver’s license.
Appellant then stated that the license plate belonged to his van.
Beasley testified that after he returned Appellant’s driver’s license and issued
a citation, Appellant still appeared to be “real nervous.” Beasley then asked
Appellant whether he had any illegal contraband in the vehicle such as weapons or
drugs and Appellant stated that he did not. Beasley then asked Appellant whether
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he could se arch th e vehic le and Appe llant sa id, “Go ahea d.” Afte r obtain ing
consent, Beasley asked Webb to get out of the vehicle and he began the search.
Beasley testified that during the search of the vehicle, he discovered an
orange-colored pill bottle under the arm rest be tween the drive r’s and pass enge r’s
seats. When Beasley opened the bottle, he observed a substance that he
recognized as twen ty-six rocks o f crack co caine. B easley a lso testified that
Appellant and Webb were subsequently arrested and no materials used for the
consumption of cocaine were found on either Appellant or Webb.
Beasley testified that after Appellant was arrested and advised of his rights,
Appellant waived his rights an d agree d to ma ke a state ment. In the statem ent,
Appellant admitted that he owned the vehicle in which the cocaine was found, but
he denied that the cocaine belonged to him. Appellant also stated that he did not
know where the cocaine had come from, but he assumed that it belonged to Webb
because Webb had previously discovered some cocaine on the side of the road.
On cross-examination, Be asley te stified th at whe n he s toppe d App ellant’s
vehicle, he did not see either Appellant or Webb throw anything.
Chief Jesse Poole of the Ato ka, Ten nesse e Police D epartm ent testified th at,
based on his training and experience, the street value of twenty-six rocks of crack
cocaine was approximately $500.
Lisa Mays of the Tennessee Bureau of Inves tigation testified that the pill bottle
obtained during the search contained 5.6 grams of cocaine base. Mays testified that
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this amount of cocaine was approximately eleven times greater than the amount
involved in a typical case.
II. SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to support his conviction.
We disagree.
When an appellant challenges the sufficiency of the evidence, this Court is
obliged to review th at challen ge acc ording to certain we ll-settled princ iples. A verdict
of guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State’s
witnesses and resolves all conflicts in the testimon y in favor of the State. State v.
Cazes, 875 S.W .2d 25 3, 259 (Ten n. 199 4). Alth ough an ac cuse d is orig inally
cloaked with a presumption of innocence, a jury verdict removes this presumpti on
and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.
1982). Hence, on app eal, the bu rden of p roof rests w ith Appe llant to dem onstrate
the insufficiency o f the conv icting evide nce. Id. On appeal, “the [S]tate is entitled
to the strongest legitimate view of the evidence as well as all reasonable and
legitimate inferences that m ay be drawn therefrom.” Id. Where the sufficiency of the
evidence is contested on appeal, the relevant ques tion for th e revie wing c ourt is
whether any rational trier of fact could h ave found the accused g uilty of every
element of the offen se beyo nd a rea sonab le doub t. Jack son v. V irginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In conducting our evaluation
of the convicting eviden ce, this Court is precluded from reweighing or reconsidering
the evidenc e. State v. Morgan, 929 S.W .2d 380, 383 (Tenn. Crim . App. 1996 ).
Moreover, this Court may not substitute its own inferences “for those drawn by the
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trier of fact from circum stantial evidence.” State v. Matthews, 805 S.W.2d 776, 779
(Tenn. C rim. App. 199 0). Finally, Rule 13(e) of the Tennessee Rules o f Appella te
Procedu re provides, “findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier
of fact beyo nd a rea sonab le doub t.”
In order to establish that Appellant had committed the offense for which he
was convicted, the Sta te had to prove beyond a reasonable doubt that Appellant
possessed .5 or more grams of cocaine with the intent to deliver. Tenn. Code Ann.
§ 39-17-41 7(a)(4) (1997).
W e conclude that when the evidence is viewed in the light m ost favora ble to
the State, as it mu st be, th e evide nce w as clea rly sufficie nt to su pport A ppella nt’s
conviction. Webb testified that when Appellant stopped the vehicle and began
opening the door, Appellant took a pill bottle out of his pocket and tossed it to Webb.
Webb also testified that he then threw the bottle back to Appellant, but he did not
actua lly see where it landed. Beasley testified that during the search of Appe llant’s
vehicle, he dis cover ed a p ill bottle th at con tained what a ppea red to b e twen ty-six
rocks of crack cocaine. Poole testified that the street value of twenty-six rocks of
crack cocaine was approximately $500. Mays testified that the pill bottle contained
5.6 grams of cocaine. Mays also te stified th at this a mou nt is approximately eleven
times greater than the amount of cocaine in a typical case.
Appellant essentially argues that the evidence was insufficient because the
only proof that he ever possessed the cocaine came from the testimony of Webb and
Webb was simply not credible. Specifically, App ellant argues tha t no rational jury
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could have believed Webb’s testimony because his version of the facts w as illogic al,
he had a motive to lie, his testimony was contradicted by the testimony of Beasley,
and his testimony co ntained incon sistencies. How ever, “[t]he credibility of the
witnesses, the weight to be given their testim ony, and the reco nciliation of c onflicts
in the evidence are matters entrusted exclusively to the jury as the triers of fact.”
State v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998). The jury obviously believed
W ebb’s testimony that Appellant initially had the bottle of crack cocaine in his pock et.
In this case, Appellant essentially asks us to reconsider the evidence and
substitute a verdict of no t guilty in place of the verdict found by the jury. That is not
our function. Instead, we conclude that a rational jury could have found beyond a
reaso nable doubt that Appellant had committed the offense of possessing .5 or more
grams of cocain e with inten t to deliver. See Tenn. R. App. P. 13(e). Appellant is not
entitled to relief on this issue.
III. ACCOMPLICE TESTIMONY
Appellant contends that the trial court erred when it refused to grant his motion
for acquittal because the on ly evide nce a gains t him came from the uncorroborated
testimony of an accomplice. We disagree.
In Tennessee, it is well-settled that a defendant cannot be convicted on the
uncorroborated testimon y of an ac comp lice. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn . 1994). H oweve r,
[t]his corroborative evidence may be direct or entirely circum stantia l, and it
need not be adequate, in and of itse lf, to suppo rt a conviction; it is sufficient
to meet the req uirem ents o f the rule if it fairly and legitim ately tends to connect
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the defendant with the commission of the crime charge d. It is not necessa ry
that the corroboration extend to every part of the accomplice's evidence. The
corroboration need n ot be con clusive, bu t it is sufficient if this evid ence, of
itself, tends to connect the defendant with the commission of the offense,
although the evidence is slight and entitled, when standing alone, to but little
conside ration.
Id. In other words, “on ly slight circumstances are required to corroborate an
accomplic e's testimony.” State v. Griffis, 964 S.W .2d 577 , 589 (T enn. C rim. App.
1997). Whether an accom plice's testimony has been sufficiently corroborated is a
question for the jury. Bigbee, 885 S.W.2d at 803.
W e conclud e that the other evidence in this case is sufficient to establish at
least the “slight circ umsta nces” n ecessa ry to corrob orate W ebb’s testim ony.
Beasley testified that when he stopped Appellant’s vehicle and pulled in behind him,
Appellant exited the vehicle and walked away. Beasley also testified that when he
asked Appe llant for h is driver ’s licens e, App ellant w as “ext reme ly nervo us” an d “[h]is
hand w as sha king unc ontrollably.” In addition, Beasley testified that even after he
returned Appellant’s driver’s license and g ave him the cita tion, Ap pellan t was “s till
real nervous.” Further, it is undisputed that Appellant was both the owner and the
driver of the vehicle in which Beasley found the cocaine. As this Court has
previo usly noted, constructive possession of a controlled substance can be inferred
to the person who had control over the vehicle in which it wa s found . State v. Brown,
915 S.W .2d 3, 7 (Ten n. Crim. App . 1995).
W e conclude that while the above evidence may not have been adeq uate, in
and of itself, to sup port a co nviction, the evidenc e “fairly and le gitimately te nds to
connect [Appellant] with the commission of the crime c harge d.” Th us, W ebb’s
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testimony was s ufficien tly corro borate d. App ellant is not en titled to re lief on this
issue.
IV. ASSISTANCE OF COUNSEL
Appellant contends that his conviction should be reversed because he
received ineffective assistance of counsel at trial. We disagree.
Article I, Section 9 of the Tennessee Constitution provides "that in all criminal
prosecutions, the accused hath the right to be heard by himself and his counsel."
Tenn. Const. a rt I, § 9. Similarly, th e Sixth Am endm ent to the U nited State s
Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the assistance of counsel for his defense." U.S. Const. amend.
VI. "The se co nstitutio nal pro visions afford to the ac cuse d in a criminal prosecution
the right to effec tive assista nce of co unsel." Henley v. State, 960 S.W.2d 572, 579
(Tenn. 19 97).
In order to o btain relief on the basis of ineffective assistance of counsel, an
appellant “bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) the de ficient performan ce was pre judicial.” Powers
v. State, 942 S.W .2d 551 , 558 (T enn. C rim. App . 1996). In order to show deficient
performance, an appellant must establish that the services rendered or the advice
given was below "the range of competence demanded of attorneys in criminal
cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to show
prejudice, an appellant must show a reasonable probability tha t, but for c ouns el's
ineffective performan ce, the res ult of the pro ceedin g would have be en differen t.
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Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674(1984). “Because [an appellant] must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient
performance or resulting prejudice provides a sufficient basis to deny relief on the
claim." Henley, 960 S.W .2d at 580 . "Indeed , a court n eed not address the
comp onents in any particular order or even address both if the defendant makes an
insufficient s howing of one co mpon ent." Id.
First, Appellant contends that he received ineffective assistance of counsel
because during d efense couns el’s open ing statem ent, he sa id that Appellant was
guilty. The record indicates that during his opening statement, defense counsel
stated,
Thank you for being here today. I think you’ve been carefu lly selected. Mr.
Maurice Shaw is guilty. We say he’s presumed— Forgive me. Mr. Maurice
Shaw is innocent. We say he is presumed innocent. And this is my
opportu nity to talk abo ut what I ex pect the e vidence will show . . . .
Appellant has failed to show that this remark had any adverse effect on his defense.
Indeed, it is clear that this comment was completely inadvertent and counsel
imm ediate ly corrected his misstatement. Nothing in the record indicates that the jury
based its verdict on this obviously inadvertent remark rather than the evidence that
was presen ted durin g the trial. Th us, App ellant has failed to sho w that he was
prejudiced by this remark.
Second, Appellant claims that he received ineffective assistance of counsel
because during defense counsel’s closing argum ent, he mad e reference to a story
about a bull-frog with wings and also stated that as Appellant’s friend, Webb was
more interested in helping himself than he was in helping Appellant. While these
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argum ents were not particu larly clear, Appellant has failed to show how he was
prejudiced by them. Indeed, the record indicates that defense counsel made many
of the same arguments in his closing argument that Appellant makes on appeal. For
instance, counsel argued that Webb’s version of the events was not logical, that
Webb was not credible, that Webb had a motive to lie, and that Appellant’s actions
indicated that he was inn ocent. W hen the closing argument is considered as a
whole, it is cle ar that Ap pellant wa s not pre judiced b y it.
Third, Appellant contends that he received ineffective assistance of counsel
because in defense counsel’s closing argument, he referred to the trial as a “dope
case” and he used th e term “dope salesperson” when he attacked the logic of the
prose cutor’s closing argum ent. Howeve r, Appellant has failed to show how he was
prejudiced by these references and nothing in the record indicates that these
com men ts had any effe ct on th e outc ome of the tria l.
Finally, Appella nt claims that he rec eived ineffe ctive assista nce of counsel
because defense counsel failed to obtain the prior criminal record of Webb.
Appellant argues that the fact that his coun sel failed to investigate Webb’s criminal
record is shown by the following statement counsel made during a bench conference
during his cross-examination of Webb:
W e have recen tly got in touch with wha t we think is a prior record on this
gentleman. I’d like to ask for a few moments to go in the Clerk’s office to see
if my office h as faxed it in here yet.
Contrary to Appellant’s assertions, this stateme nt does not clearly indicate that
defense couns el failed to inve stigate Webb’s criminal record. Withou t an evidentiary
hearing on the issue, any conclusion about the extent of defense counsel’s pretrial
preparation would be mere speculation. More importantly, there is no proof in the
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record that We bb ac tually ha d a prio r crimin al reco rd. Be caus e there is no proof that
Webb had a prior criminal record, Appellant’s claim that he was prejudiced by
defense counsel’s failure to obtain the alleged criminal record is pure conjecture.
In short, Appellant has failed to demonstrate that he was prejudiced by any of
the allege d defic iencie s of his c ouns el at trial. There fore, App ellant has failed to
show that he received ineffective assistance of counsel. Appellant is not entitled to
relief on this issue.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. WELLES , Judge
___________________________________
NORMA McG EE OGLE, Judge
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