State of Tennessee v. Demetrius Robinson ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1999 SESSION
March 8, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9712-CC-00549
)
Appellee ) BLOUNT COUNTY
)
v. ) HON. D. KELLY THOMAS, JR.,
) JUDGE
DEMETRIUS ROBINSON, )
) (Delivery of cocaine)
Defendant/Appellant )
FOR THE APPELLANT: FOR THE APPELLEE:
Gerald C. Russell John Knox Walkup
125 E. Broadway Avenue Attorney General & Reporter
Maryville, TN 37804
R. Stephen Jobe
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
OPINION FILED
AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
OPINION
On October 15, 1997, the defendant was convicted of delivering cocaine and
he was sentenced to serve four years in the penitentiary.
The defendant was tried along with a co-defendant Reggie Barton. In the
course of the trial, statements made by Barton implicated the defendant.
The defendant raises the following issues:
1. Whether the defendant’s Motion To Sever the trial should have
been granted?
2. Whether the co-defendant’s statement to the confidential
informant should have been excluded or redacted?
We affirm the judgment of the trial court.
The evidence presented by the State and accredited by the jury shows that
on June 11, 1997 Jake Cleveland, an undercover drug buyer, went to the Howe
Street Park area in Blount County to attempt to develop a case specifically involving
Robinson. The officer drove through the area once without making contact. He
drove through a second time and the defendant yelled to Barton, the co-defendant,
to stop Cleveland and see what he wanted.
Cleveland stopped and Barton got into his car and informed him that
Robinson was selling “two for forty,” which meant two twenty dollar rocks of crack
cocaine for $20 total. Cleveland told Barton he wished to buy four rocks, but Barton
told him Robinson did not have that much cocaine. Cleveland then gave Barton the
money to buy two rocks, and Barton approached Robinson. Robinson reached into
his clothing and retrieved a bag that he gave to Barton. Barton delivered the money
to Robinson, took possession of the bag, and delivered it to Cleveland. The bag
contained cocaine.
This transaction was tape recorded and the recording was played to the jury.
Of course, it contained Barton’s statements about Robinson. Additionally,
Cleveland testified about the statements made to him by Barton about Robinson.
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The defendant asserts that the trial of him and Barton together violated his
right to cross examine Barton because Barton did not testify. It is Robinson’s
position that this procedure violates the rule in Bruton v. United States, 391 U.S.
123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), which prohibits the use of a non-
testifying co-defendant‘s statements which implicate a co-defendant.
The use of co-defendant statements may not be generally admitted against
another at trial in defiance of the confrontation right of an accused. However, if it is
shown that the defendants conspired with each other or others to commit the crime
being prosecuted, the Bruton rule is not applicable.
A conspiracy is a combination of two or more persons to do a criminal act.
State v. Lequire, 634 S.W.2d 608 (Tenn. Crim. App. 1981). The facts in this case
clearly show Barton and Robinson were acting in concert to sell cocaine. This being
the case, the statement of one of the conspirators was admissible in the case
whether that defendant testifies or not. Tenn. R. Evid. 803(1.2)(E). The trial judge
did not err in refusing to sever the two defendants for trial or for not redacting
Barton’s statements.
The judgment of the trial court is affirmed. It appearing that the defendant is
indigent, costs of the appeal are taxed to the State.
John K. Byers, Senior Judge
CONCUR:
James Curwood W itt, Jr., Judge
Norma McGee Ogle, Judge
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