State of Tennessee v. Kenneth Miller and Ray Junior Turner ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
January 12, 2010 Session
STATE OF TENNESSEE v. KENNETH MILLER AND
RAY JUNIOR TURNER
Appeal from the Criminal Court for Davidson County
No. 2007-D-3535 Cheryl Blackburn, Judge
No. M2008-02267-CCA-R3-CD - Filed April 22, 2010
The Defendants, Kenneth Miller and Ray Junior Turner, were convicted by a Davidson
County jury of conspiracy to deliver 300 grams or more of cocaine and delivery of 300 grams
or more of cocaine. Additionally, the Defendant Miller was found guilty of possession with
intent to deliver 300 grams or more of cocaine. All convictions are Class A felonies. See
Tenn. Code Ann. § 39-17-417(j)(5). Following a sentencing hearing, the trial court
sentenced the Defendant Miller to an effective sentence of one hundred and twenty years as
a Range II, multiple offender; the trial court ordered all three of his forty-year sentences to
be served consecutively to one another. As for the Defendant Turner, the trial court imposed
an effective sentence of sixty years as a career offender, running both of his sixty-year
sentences concurrently with one another. On appeal, the Defendant Miller presents the
following issues for our review: (1) whether the trial court erred in not suppressing the
evidence gathered via wiretaps; (2) whether it was error to allow a State’s witness to “field-
test” a substance found on an exhibit; (3) whether the evidence was sufficient to support
verdicts for conspiracy and delivery of 300 grams or more of cocaine; and (4) whether the
trial court committed sentencing errors. The Defendant Turner, in addition to challenging
the sufficiency of the evidence in support of his convictions, argues that: (1) the trial court
erred by admitting into evidence certain “drug ledgers” found in his apartment; and (2) the
telephone calls intercepted during the wiretap investigation, purported to contain the
Defendant’s voice, were, in fact, inadmissible hearsay. After a review of the record, the
judgments of the trial court are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.
David A. Collins, Nashville, Tennessee, for the appellant, Kenneth Miller, and Michael A.
Colavecchio, Nashville, Tennessee, for the appellant, Ray Junior Turner.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; John Zimmerman and
Andrea Green, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
Factual Background
This case results from an ongoing drug investigation involving the Defendants. A
Davidson County grand jury issued a superseding indictment1 on December 13, 2007,
charging the Defendants Miller and Turner with conspiracy to deliver 300 grams or more of
cocaine; the Defendants Miller and Turner with delivery of 300 grams or more of cocaine;
the Defendant Miller with possession with intent to deliver 300 grams or more of cocaine;
the Defendant Miller with possession with intent to deliver 26 grams or more of cocaine in
a school zone; and the Defendant Miller with delivery of 26 grams or more of cocaine. A
jury trial was held on May 20-21, 2008. The jury was unable to reach a verdict on the
charges against the Defendant Miller for possession with intent to deliver 26 grams or more
of cocaine in a school zone and delivery of 26 grams or more of cocaine; therefore, we will
not recite the evidence as it relates to those charges.
We will summarize the proof in the light most favorable to the State. Agent Shelly
Smitherman, with the Tennessee Bureau of Investigation (“TBI”), testified that she was the
agent in charge of the investigation involving the Defendants, which began in December
2005. Agent Smitherman obtained a wiretap order allowing her to intercept the Defendants’
phone calls; she explained that agents in the wireroom listened to the phone calls and that
they would relay pertinent information to officers in the field conducting surveillance of the
Defendants.
Through intercepting these phone calls, it was determined that a drug deal was to take
place on March 24, 2006, at the Rivergate Mall. The Defendant Miller was to deliver a
kilogram (“kilo”) of cocaine to an unidentified individual coming from Kentucky. Police
conducted surveillance of the Defendant Miller throughout the day. At 11:34 a.m. on this
day, the Defendant Miller phoned the Defendant Turner and asked him to “come and drop
1
The initial eight-count indictment was returned on June 20, 2006, and included co-defendants,
Cory Montez Crawford, Kavares Chakan Davis, Tommie Lee Griffin, Gregory Antonio Sweeny, and Ned
Wayne Thompson.
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it off.” TBI Special Agent Steve Talley testified that Kavares Davis (“Davis”) arrived at the
Defendant Miller’s apartment at 1:34 p.m. At 1:47 p.m., officers observed the Defendant
Turner, along with two other individuals, arrive at the Defendant Miller’s apartment. The
Defendant Turner went inside the residence through the garage door. After his arrival, the
blinds were closed. A few moments later, the blinds were reopened, and the Defendants and
Davis exited the apartment and stood out front talking for a time. Around 2:50 p.m., the
Defendant Turner and Davis left the residence.
Around 6:30 p.m., officers observed the Defendant Miller leave his apartment in his
black Chevrolet Impala, heading toward the Rivergate area. When he arrived at the mall, the
Defendant went inside the food court area and purchased some cookies. He received a call
from Davis and then returned to his vehicle. The Defendant drove to the food court entrance,
and a man got inside the vehicle. They drove around to the other side of the mall and parked
near a green Pontiac Grand Am with Kentucky tags. Detective Herbert Kajihara, with the
Twentieth Judicial Drug Task Force, saw the man who had been in the Defendant Miller’s
car walk back toward the mall. After the Defendant Miller left, Det. Kajihara continued to
observe the Kentucky vehicle. He then saw the same man exit the mall, along with another
male and a female juvenile, and get inside the car. The individuals were carrying packages.
Officers followed the green Pontiac to a gas station. At the gas station, an individual
later identified as Ned Wayne Thompson (“Thompson”), got out of the vehicle and placed
something that looked like a bag in the trunk. When Thompson left the gas station, the
vehicle proceeded onto Interstate 65. Although radar was not used, Officer Michael Wilson
of the Metropolitan Police Department paced the vehicle traveling 80 miles per hour in a 70
mile-per-hour zone. Officer Wilson stopped the vehicle. The State did not want to
compromise the wiretap investigation, so the officers proceeded under the auspice that they
were stopping the individuals for a traffic violation, and they obtained probable cause to
search the vehicle due to a K-9 alert. Hidden behind carpeting inside the trunk, officers
discovered two separately packaged bricks of cocaine, weighing approximately two
kilograms.
Officers then procured search warrants for the Defendants’ residences. During the
search of the Defendant Miller’s residence, police recovered: one kilo of cocaine from the
kitchen; 124.5 grams of cocaine found inside a shoe box in the bathroom; $13,000 in cash
from the safe; a notebook with drug ledgers, including names; some nine millimeter rounds
for a handgun; and “gunk cans” containing cocaine. Officers also found items used to
prepare the cocaine for resale—digital scales, a “kilo press,” plastic baggies, and a “cutting
agent” used to break down cocaine. The Defendant Miller also used a video camera to
monitor the parking lot in front of his apartment. At the Defendant Turner’s residence,
Agent Talley was in charge of collecting evidence. Evidence collected included five
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notebooks containing drug ledgers found in the kitchen garbage can, digital scales, a vacuum
bag sealer, two loaded handguns, a “kilo press,” and a “cutting agent.”
Kavares Davis, initially a co-defendant in this case, testified that he had entered a
guilty plea to possession of .5 grams or more of cocaine and received an eight-year sentence
under the terms of the agreement. Davis affirmed that the Defendant Turner was his uncle
and that the Defendant Miller was his cousin. The Defendant Miller supplied him with
cocaine at the time of his March 2006 arrest and had done so “off and on” for two or three
years. In November or December 2005, Davis told the Defendant Miller that he did not like
dealing with the Defendant Turner because of his high prices, $20,000 for a kilo of cocaine;
however, the Defendant Miller continued to deal with the Defendant Turner.
Davis went to the Defendant Miller’s apartment on the evening of March 23, 2006.
The Defendant Turner was already there; he had brought three bricks or kilos of cocaine for
the Defendant Miller, which were sitting on the table. The Defendant Miller said one of the
kilos was “bad,” and the Defendant Turner promised to replace it with another one the next
day. The Defendant Turner took the “bad” kilo with him when he left.
According to Davis, the Defendant Turner showed up the following morning with two
other men. Davis was already there because he and the Defendant Miller were supposed to
go get something to eat. Davis went downstairs to let the Defendant Turner in through the
garage. The Defendant Turner went upstairs, but Davis stayed downstairs. Davis testified
that the Defendant Turner was dropping off the new kilo of cocaine, which he had in his
arms. The Defendants then came back down to the basement, and all three men exited and
stood outside talking for a while.
Later that day, the Defendant Miller asked Davis to follow him to Rivergate Mall to
meet Thompson, aka “Kentucky.” Davis phoned the Defendant Miller who was in the food
court area of the mall; the Defendant Miller stated he was “waiting on them to get done
eating.” Davis made plans to meet the Defendant Miller at a Mapco gas station following
the exchange. After they met at the gas station, they proceeded to the Defendant Turner’s
residence, where only the Defendant Miller went inside. About five minutes later, he came
back out to the car and grabbed a bag, which he stuffed in his coat, and went back inside.
Later that evening, Davis and the Defendant Miller were arrested at a Mexican restaurant in
Hermitage.
Previously, on March 10, 2006, Agent Smitherman saw Davis place a trash bag in the
dumpster of the Defendant Miller’s apartment complex. Agent Smitherman pulled the trash
and found three empty plastic “kilo wrappers,” rubber gloves, a “cutting agent,” and a sheet
of paper showing a drug ledger. Additionally, on March 10, officers in the wireroom began
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listening to numerous conversations involving the Defendants, wherein the Defendants used
code words for exchanging drugs and money.
Following the conclusion of the proof, the jury found both of the Defendants guilty
of conspiracy to deliver 300 grams or more of cocaine and delivery of 300 grams or more of
cocaine. The Defendant Miller was also found guilty of possession of 300 grams or more
of cocaine with the intent to deliver.
A sentencing hearing was held on July 16, 2008. The trial court sentenced the
Defendant Turner to two concurrent terms of sixty years as career offender. As for the
Defendant Miller, the trial court enhanced his sentence on each conviction to forty years as
a Range II, multiple offender. The trial court then ordered all three of these sentences to be
served consecutively to one another, for a total effective sentence of one hundred and twenty
year.
The Defendants timely filed motions for a new trial. This appeal followed.
I. Wiretap Evidence 2
A. Neutral and Detached Magistrate
The Defendant Miller challenges the evidence obtained via the wiretap order,
contending that the trial court erred by failing to suppress said evidence because the wiretap
order was not issued by a “neutral and detached magistrate.” “[A] trial court’s findings of
fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.”
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We review a trial court’s applications of
law to fact de novo, however. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The
party prevailing at the suppression hearing is further “entitled to the strongest legitimate view
of the evidence adduced at the suppression hearing as well as all reasonable and legitimate
inferences that may be drawn from such evidence.” Odom, 928 S.W.2d at 23. In reviewing
a trial court’s ruling on a motion to suppress, an appellate court may consider the evidence
presented both at the suppression hearing and at the subsequent trial. State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998).
The Wiretapping and Electronic Surveillance Act, Tennessee Code Annotated section
40-6-301 to -311, allows certain judges to issue orders authorizing interception of wire, oral,
or electronic communications upon the application of law enforcement. Tenn. Code Ann.
§ 40-6-304. The application must include the following:
2
For the purposes of clarity and brevity, we have reordered the issues as presented by the
Defendants’ in their respective briefs.
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(1) the identity of the applicant officer and the district attorney general
authorizing the application;
(2) a full and complete statement of the facts relied upon by the
applicant, including details of the offense, a description of the facilities from
which the communications are to be intercepted, a description of the type of
communication sought to be intercepted, and the identity of all known persons
committing the offense and whose communications may be intercepted;
(3) a statement of the time period during which the interception must
be maintained; and
(4) a statement of facts concerning any previous applications.
Tenn. Code Ann. § 40-6-304(a). The application also must contain “[a] full and complete
statement as to whether or not other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Tenn.
Code Ann. § 40-6-304(a)(3).
The Defendant Miller contends that the judge who issued the wiretap order, Judge
Monte Watkins, was not a “neutral and detached magistrate.” The basis for his contention
is that Judge Watkins, prior to becoming a judge, represented him in a criminal action
involving cocaine and, therefore, Judge Watkins had likely surmised that the Defendant was
guilty of the charges alleged in the wiretap application. The State first argues that the
Defendant has waived this issue for failing to raise it in his motion for new trial.
Additionally, the State contends that plain error review is not warranted because a clear and
unequivocal rule of law has not been breached. The State also notes that the Defendant has
failed to include a transcript of the motion to suppress hearing and a copy of the wiretap
application in the record on appeal.
Generally, issues are waived if they are not presented in a motion for a new trial. See
Tenn. R. App. P. 3(e); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997).
Therefore, this Court may only review the issue for plain error. See Tenn. R. Crim. P. 52(b)
(providing that, “[w]hen necessary to do substantial justice, an appellate court may consider
an error that has affected the substantial rights of a party at any time”). To recognize the
existence of plain error, this Court must find each of the following five factors to be present:
(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
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(c) a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is necessary to do substantial justice.
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (adopting the factors first articulated in
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). “[A] complete
consideration of all five of the factors is not necessary when it is clear from the record that
at least one of them cannot be satisfied.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn.
2007) (citing Smith, 24 S.W.3d at 283).
Initially, we observe that the Defendant Miller has made no attempt to argue that his
issue is not waived for failing to raise it in his motion for new trial, instead, arguing only that
it is not waived for failing to include a transcript of the motion to suppress hearing.
Nonetheless, we will turn our attention to the application of the Adkisson factors.
Analyzing the first factor, we conclude that the Defendant has failed to establish
clearly what occurred in the trial court by failing to properly include in the record on appeal
the wiretap application and a transcript of the motion to suppress hearing. The Defendant
contends that, “[a]ll that occurred on April 23, 2008 when the motion was docketed was for
the [Defendant] to verify that the issuing magistrate was his former attorney in a drug case
[a fact that could have been documented by reference to the exhibits attached to the . . .
motion to suppress].” However, the motion to suppress order prepared by the trial judge
belies this contention, providing as follows: “The [c]ourt held a hearing on April 23, 2008,
and the State filed its written response the dame day . . . . After hearing the evidence, the
[c]ourt orally denied the suppression motion from the bench, noting that a brief written order
would subsequently follow.” Only a transcript could clearly establish what actually occurred
on April 23, 2008. Moreover, it seems axiomatic that inclusion of the wiretap application
was paramount for substantive appellate review of the Defendant’s issue.
Second, we examine whether the record demonstrates that a clear and unequivocal
rule of law was breached. The State argues that, because this is an issue of first impression
in Tennessee, it is impossible for the trial court to have breached a clear and unequivocal rule
of law. However, the requirement that a neutral and detached magistrate issue a warrant
emanates from the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution, which protect against unreasonable searches and seizures.
See State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). The fact that Tennessee appellate
courts have yet to address its application to our Wiretap Act does not negate the
constitutional rule of law.
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Turning to that rule of law and its application to the present case, the trial court relied
upon federal law for guidance and concluded that
the fact a judge previously served as defense counsel for a defendant while in
private practice does not per se invalidate that the same individual can be [a]
neutral and detached judge when issuing a search warrant or, as is the case
here, a wiretap authorization order, for a subsequent case. There has been no
evidence presented to this [c]ourt that Judge Watkins was biased or impartial
when issuing the wiretap authorization against [the] Defendant.
We agree with the trial court, finding federal law to be sufficiently persuasive authority on
the subject. See e.g., United States v. Barry-Scott, No. 05-4464, 2007 WL 3129723, at *8
(6th Cir. Oct. 25, 2007) (judge issuing warrant found to be neutral and detached even though
he had previously represented defendant and her husband on criminal charges and was aware
of their drug activities). Concluding that the first two Adkisson factors are not satisfied, we
decline plain error review and find it unnecessary to proceed to the remaining factors.
B. Hearsay
The Defendant Turner also challenges admission of testimony regarding the tape-
recorded conversations via the wiretap. His precise argument is unclear. He states, in his
issues presented for review, that the trial court erred in allowing testimony “that the
telephone calls alleged to have been made by the Defendant were actually the Defendant, or
that the cell phone itself actually belonged to the [Defendant.]” He then claims that this
testimony was hearsay. In the argument portion of his brief, the only reference he makes to
these recordings is that the recorded conversations “contain no evidence of drug transactions,
merely what some witness claimed were ‘code’ words for drugs and money.” He then asserts
that the State’s case was based upon “hearsay statements.”
The States argues that this issue waived for failing to make a contemporaneous
objection. We note that the Defendant Turner filed no motion to suppress or motion in
limine regarding the tape-recorded conversations or testimony related thereto. Moreover, we
are unable to discern from the record an ostensible objection raising the issue the Defendant
now asserts on appeal, and the Defendant has made no reference to the record pointing to
such an objection. See Tenn. R. App. P. 27(a). As an anomaly, we point out that the
Defendant did raise the issue in his motion for new trial; however, the motion was denied,
and the trial court did not further expound upon the issue.
Regardless of any waiver, we conclude that any challenge to Agent Smitherman’s
testimony identifying the voices on the recordings, stating who used each phone, and
explaining the meaning of certain terms used in drug-related conversations is without merit.
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All of these statements are admissible law enforcement agent testimony. A law enforcement
officer experienced in wiretap interceptions may give testimony about specifics such as these
when that officer is personally knowledgeable of these facts. Additionally, this Court has
previously held that a narcotics officer may testify about the language used by drug dealers.
See State v. Carey, 914 S.W.2d 93, 96 (Tenn. Crim. App. 1995).
The Defendant also appears to challenge admission of evidence on the ground that he
perceives the testimony to be “hearsay” and lacking foundation. The Defendant did raise
several hearsay objections at trial to evidence obtained from the wiretap; however, the
Defendant only challenged as hearsay messages relayed to officers in the field from the
wireroom. The trial court overruled the Defendant’s objections, concluding that the
messages were not introduced for the truth of the matter asserted but to explain the officers’
subsequent actions. We agree with the trial court. Moreover, we note that testimony and
evidence from the recordings are not hearsay or fall within exceptions to the hearsay rule.
For example, a party’s own statement in either an individual or a representative capacity is
not excluded by the hearsay rule. See Tenn. R. Evid. 803(1.2)(A). Additionally, many of
these calls contain co-conspirator statements, likewise an exception to the hearsay rule: “[A]
statement by a co-conspirator of a party during the course of and in furtherance of the
conspiracy.” See Tenn. R. Evid. 803(1.2)(E). Therefore, these statements were not
excluded by the hearsay rule.
II. Testing of Substance
The Defendant Miller argues that the trial court abused its discretion when it permitted
Det. Kajihara, in the presence of the jury, to “field test” the substance, previously undetected
by officers, retrieved from the box containing the digital scales. The Defendant alleges that
it was error because the substance had not been revealed in the discovery process and there
was no chain of custody established for the substance.
Agent Talley testified that he was involved in the search of the Defendant Turner’s
residence and was responsible for the collection of evidence. On top of a dresser in the
Defendant Turner’s master bedroom, Agent Talley found a set of digital scales inside a box,
which he testified could be used for weighing drugs. The scales and the box were admitted
into evidence without objection. On cross-examination, Agent Talley testified that he had
not detected any cocaine residue on the scales. On redirect, the State asked, “Today when
you were jostling the box around that contained the scales did you see anything that was
unusual?” Agent Talley replied, “Yes, sir. I noticed a white, chunky substance in the box
that I’ve not previously seen.” Agent Talley affirmed that he first found the substance upon
examining the scales in front of the jury and that he had not touched the substance or “tried
to feel it in any way.” The trial court then directed Agent Talley to “rake” the substance into
a plastic bag. Later in the trial, Det. Kajihara testified that he was experienced in using
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cocaine “field-test” kits and relayed that he had brought a test kit with him at the State’s
request. At that time, the State asked that Det. Kajihara be allowed to test the substance
found in the box. The Defendants objected, arguing that the chain of custody had not been
established and that the substance had not been disclosed in the discovery process. The trial
court overruled the objection finding that the substance was “part of the exhibit” and that the
Defendants’ argument went to the weight of the evidence, not its admissibility.
A. Chain of Custody
As for the chain of custody of the substance, the Defendant Miller points to the facts
that the box “supposedly laid around somewhere for two years” and the substance was
“undiscovered” by authorities and that “the record is silent relative to where this substance
was and how it was secured from the time it was allegedly discovered . . . and the time it was
tested . . . the next day.” Thus, he submits that “said demonstration in the presence of the
jury so prejudiced the panel” that his right to a fair and impartial trial was violated, entitling
him to a new trial.
We begin our analysis by first noting that the standard of review for this issue is one
of “sound discretion of the trial court, and the court’s determination will not be disturbed in
the absence of a clearly mistaken exercise of such discretion.” State v. Kilpatrick, 52 S.W.3d
81, 87 (Tenn. Crim. App. 2000); see also State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim.
App. 1987). We conclude that the record on appeal supports the trial court’s findings.
In order for tangible material to be admitted into evidence, a witness must be able to
identify the evidence or establish an unbroken chain of custody. State v. Goodman, 643
S.W.2d 375, 381 (Tenn. Crim. App. 1982). The purpose of the chain of custody requirement
is to “demonstrate that there has been no tampering, loss, substitution, or mistake with
respect to the evidence.” State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993).
However, this Court has also ruled that the State is not required to “establish facts which
exclude every possibility of tampering,” but rather must establish circumstances that
“reasonably assure the identity of the evidence and its integrity.” Kilpatrick, 52 S.W.3d at
87. In other words, the chain of custody rule “does not require absolute certainty of
identification.” Id. (citing Ritter v. State, 462 S.W.2d 247 (Tenn. Crim. App. 1970)). Rather,
“[r]easonable assurance, rather than absolute assurance, is the prerequisite for admission.”
Id.
The Defendant has failed to point to any facts which suggest the integrity of the
evidence was impugned in any way. There was no objection to admission of the box and
scales as an exhibit, and the box and scales were accounted for in Agent Talley’s records.
Agent Talley testified that he first noticed the white substance upon examining the scales in
front of the jury. Agent Talley affirmed that he had not altered the substance by touching it.
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The trial court then directed Agent Talley to rake the substance into a plastic bag. The record
indicates that the substance was then in possession of the trial court until tested by Det.
Kajihara the next day. The record establishes reasonable assurance that the substance
admitted at trial was in the box found at the Defendant Turner’s residence and was not
tampered with.
Therefore, we conclude that the trial court did not abuse its discretion in determining
that the chain of evidence was sufficient to allow field-testing of the substance and its
admission into evidence at trial. Moreover, we note that the substance tested was a small
amount of cocaine and found at the Defendant Turner’s residence. Given the large amounts
of cocaine involved in this case, the strong case of the State, and the fact that the substance
was not connected to the Defendant Miller, any error was harmless. This issue is without
merit.
B. Discovery Violation
The Defendant Miller further asserts that the trial court should have excluded the
substance from evidence because of the State’s failure to produce it before trial. Under Rule
16(a)(1)(F) of the Tennessee Rules of Criminal Procedure, upon request of a defendant, the
State shall permit a defendant to inspect and copy or photograph documents and objects
within the possession, custody or control of the state, and which are material to the
preparation of a defendant’s defense, are intended for use by the state as evidence in chief
at the trial, or were obtained from or belonged to the defendant. Tenn. R. Crim. P.
16(a)(1)(F). Additionally, section (c) of Rule 16 imposes a continuing duty to disclose
discoverable items of evidence.
Although Rule 16(d)(2) does provide that the court may “prohibit the party from
introducing evidence not disclosed,” Tennessee Rules of Criminal Procedure 16(d)(2), this
Court has held that excluding evidence for a Rule 16 violation is a “drastic remedy and
should not be implemented unless there is no other reasonable alternative.” State v. Smith,
926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). The evidence should not be excluded unless
the Defendant was prejudiced by the discovery violation itself. Id.; see also State v. Cottrell,
868 S.W.2d 673, 677 (Tenn. Crim. App. 1992). As for any discovery violation, when
arguing that the State has violated Rule 16, a defendant bears the burden of showing “the
degree to which the impediments to discovery hindered trial preparation and defense at trial.”
State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD, 2002 WL 140059, at *56
(Tenn. Crim. App., Knoxville, June 28, 2002) (quoting State v. Brown, 836 S.W.2d 530, 548
(Tenn. 1992)).
It appears that both the Defendants would have been aware of items discovered at the
Defendant Turner’s residence during the execution of the search warrant; thus, presumably
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aware that the State intended to introduce the box and digital scales as an exhibit at trial. The
exhibit was available to the defense for inspection; there is no allegation that the State failed
to disclose the digital scales and the box during discovery or that the State intentionally failed
to record the substance inside the box. Agent Talley testified that he just discovered the
substance while “jostling” the box, which was brought from the property room. The court
took possession of the substance following its discovery. We conclude that the Defendant
was not prejudiced by the State’s failure to produce this substance prior to trial. Again, if
there was any error by the trial court in this regard, it was harmless.
III. Drug Ledgers
Next, the Defendant Turner submits that it was error to permit the State to enter into
evidence “drug ledgers” found inside his residence; he referred to them as “undated
scribblings.” He contends that these ledgers “were irrelevant to the alleged drug conspiracy
and possession of cocaine charges in this case.” The Defendant asserts that the State did not
prove the ledgers were his; they were found inside his wife’s apartment. The Defendant’s
wife testified at trial that she and the Defendant were separated, and he was not living there
at the time of the search.3
Agent Talley testified that, while searching the Defendant Turner’s residence, he
discovered five notebooks (“drug ledgers”) inside the kitchen garbage can: one large
composition book and four smaller notebooks. Agent Talley saw the initials K.D. in the
notebooks, which was a nickname for the Defendant Miller. Agent Smitherman examined
the evidence after it was recovered. Although the ledgers were undated, the ledgers did
contain a list of the Defendant Turner’s customers, including amounts owed.
“‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Tenn. R. Evid. 401; see also State v.
Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). Tennessee Rule of Evidence 402
provides that “[a]ll relevant evidence is admissible except as [otherwise] provided . . . .
Evidence which is not relevant is not admissible.” However, even relevant evidence “may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.
It is within the trial court’s discretion to determine whether the proffered evidence is
relevant; thus, we will not overturn the trial court’s decision absent an abuse of discretion.
State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).
3
Interestingly enough, the Defendant does not challenge any of the other evidence recovered from
this residence on this ground.
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First, we note that, while the Defendant Turner filed a motion in limine to excluded
the ledgers, it does not appear in the record on appeal where this motion was brought to the
trial court’s attention.4 Moreover, the Defendant does not cite to the record wherein he raised
a contemporaneous objection at trial, and we can find none. The Defendant has waived the
issue. See Tenn. R. App. P. 36(a). Nonetheless, both Agents, experienced narcotics
investigators, testified that the notebooks were “drug ledgers,” in which the Defendant
recorded who owed him money and how much they owed. Agent Smitherman was able to
confirm some of the entries based upon intercepted phone calls. The ledgers were found in
the kitchen garbage can of the residence; the Defendant Turner’s argument that the
notebooks did not belong him went to the weight, not the admissibility, of the evidence. It
was established that the Defendant Turner frequented the apartment, and additional items
were found indicating a large drug operation. We conclude that the evidence was relevant
to the existence of a conspiracy between the Defendants and its probative value was not
outweighed by any other considerations. The trial court did not abuse its discretion in
admitting the notebooks into evidence.
IV. Sufficiency
On appeal, the Defendants raise several challenges to the sufficiency of the evidence
supporting their respective convictions.5 The crux of their claim is that the accomplice
testimony of Kavares Davis was not corroborated. The Defendant Turner asserts that the trial
court erred in denying his motion for judgment of acquittal on all counts of the indictment.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings 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 of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
4
At the motion for new trial hearing, the trial court stated, “The motion in limine, I addressed that,
and I gave my reasons for that.”
5
The Defendant Miller does not appear to challenge his possession with intent to deliver conviction,
which was based upon the cocaine recovered from his residence during the search.
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beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).
On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of 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, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.
Moreover, on appellate review of a denial of a motion for judgment of acquittal, we apply
the same standard as a question of the sufficiency of the convicting evidence. See, e.g., State
v. Brewer, 945 S.W.2d 803, 805 n.2 (Tenn. Crim. App. 1997).
It is an offense for a defendant to knowingly deliver a controlled substance. See Tenn.
Code Ann. § 39-17-417(a)(3). Cocaine is a Schedule II controlled substance and, if the
amount involved is 300 grams or more, then the offense is a Class A felony. See Tenn. Code
Ann. §§ 39-17-417(c), (j)(5). “‘Deliver’ or ‘delivery’ means the actual, constructive, or
attempted transfer from one person to another of a controlled substance, whether or not there
is an agency relationship.” Tenn. Code Ann. § 39-17-402(6). To establish a conspiracy, the
State was required to prove the following:
The offense of conspiracy is committed if two or more people, each having the
culpable mental state for the offense which is the object of the conspiracy and
each acting for the purpose of promoting or facilitating commission of the
offense, agree that one or more of them will engage in conduct which
constitutes such offense.
Tenn. Code Ann. § 39-12-103(a). “No person may be convicted of conspiracy to commit an
offense unless an overt act in pursuance of such conspiracy is alleged and proved to have
been done by the person or by another with whom the person conspired.” Tenn. Code Ann.
§ 39-12-103(d).
The Defendants argue that State failed to provide sufficient evidence to corroborate
the accomplice testimony of Kavares Davis. It is well settled that, “[i]n Tennessee, a
conviction may not be based solely upon the uncorroborated testimony of an accomplice.”
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing State v. Bigbee, 885 S.W.2d 797,
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803 (Tenn. 1994)). This “very salutary rule” is designed to prevent the “obvious dangers”
of allowing a defendant to be convicted solely on the basis of an accomplice’s testimony.
Sherrill v. State, 321 S.W.2d 811, 814 (Tenn. 1959). However, Tennessee law requires only
a modicum of evidence in order to sufficiently corroborate the testimony of an accomplice.
State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984).
With respect to the nature, quality, and sufficiency of the evidence necessary to
corroborate an accomplice’s testimony, this Court has held as follows:
The rule of corroboration as applied and used in this State is that there must be
some evidence independent of the testimony of the accomplice. The
corroborating evidence must connect, or tend to connect the defendant with the
commission of the crime charged; and, furthermore, the tendency of the
corroborative evidence to connect the defendant must be independent of any
testimony of the accomplice. The corroborative evidence must of its own
force, independently of the accomplice’s testimony, tend to connect the
defendant with the commission of the crime.
....
The evidence corroborating the testimony of an accomplice may consist
of direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. The quantum of evidence necessary to corroborate
an accomplice’s testimony is not required to be sufficient enough to support
the accused’s conviction independent of the accomplices testimony nor is it
required to extend to every portion of the accomplice's testimony. To the
contrary, only slight circumstances are required to corroborate an accomplice’s
testimony. The corroborating evidence is sufficient if it connects the accused
with the crime in question.
State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted).
The proof necessary to corroborate the accomplice’s testimony must include “some
fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself,
leads to the inference, not only that a crime has been committed, but also that the defendant
is implicated in it; and this independent corroborative testimony must also include some fact
establishing the defendant’s identity.” Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d
at 803). In other words, the corroboration must include some fact establishing the identity
of the defendant as a criminal actor. State v. Boxley, 76 S.W.3d 381, 387 (Tenn. Crim. App.
2001). It is generally for the trier of fact to determine whether sufficient corroboration exists.
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Id. (citing Shaw, 37 S.W.3d at 903). However, as this Court has previously pointed out,
“[e]vidence which merely casts a suspicion on the accused . . . is inadequate to corroborate
an accomplice’s testimony.” Id. (quoting Griffis, 964 S.W.2d at 589).
Pursuant to the wiretap order and police intercepted phone calls, officers believed that
the Defendant Miller would be meeting with an individual from Kentucky at the Rivergate
Mall for a drug transaction on March 24, 2006. Kavares Davis testified that the Defendant
Turner delivered three kilos of cocaine to the Defendant Miller on March 23; however, one
of these kilos was “bad,” so the Defendant agreed to replace it the following day. On the
morning of March 24, the wireroom intercepted a phone call between the Defendants,
wherein the Defendant Miller asked the Defendant Turner to “come and drop it off.”
According to Davis, the Defendant Turner arrived at the apartment that morning with the
replacement kilo of cocaine. He stated that he let the Defendant Turner in through the garage
and that, after the sale was concluded, they stood outside of the apartment and talked for a
little while. Officers observed all of these coming and goings at the apartment and noticed
the blinds being closed once the Defendant Turner was inside the residence.
Davis testified that, later that day, he followed the Defendant Miller to the Rivergate
Mall. Officers intercepted a call between Davis and the Defendant Miller while the
Defendant Miller was inside the food court. Based on observations made by officers
watching the Defendant Miller, it appeared a transaction had occurred between the male in
the vehicle with Kentucky plates, later identified as Ned Wayne Thompson, and the
Defendant Miller. Detective Kajihara saw Thompson put something inside the trunk of his
car while he was stopped at a gas station. Thompson was then pulled over for speeding and,
upon a search of the vehicle, officers located two separately packaged kilos of cocaine.
The Defendant Miller and Davis met at a Mapco gas station and proceeded to the
Defendant Turner’s residence. The Defendant Miller first went inside. He then came back
outside, put a bag inside his coat, and returned inside the residence.
After the procurement of search warrants, officers found drugs and/or drug
paraphernalia at the Defendants’ residences. Much of the evidence was used in the resale
process. During the time officers were intercepting the Defendants’ calls, the Defendants
used coded language common to drug dealers, setting up meetings to sell drugs and obtain
money. Both Defendants had drug ledgers to record which customers owed money and how
much was owed. Moreover, at the March 10 pull of the Defendant Miller’s trash, items
common for use in drug dealing were discovered.
From consideration of the proof in the record before us, we find the evidence
sufficient to corroborate the testimony of the accomplice Kavares Davis. The accomplice’s
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testimony was corroborated by the taped telephone conversations, officers observations, and
the evidence recovered from the respective residences. This issue is without merit.
V. Sentencing
The Defendant Miller contends that the trial court erred in setting the length of his
individual sentences and in ordering him to serve consecutive sentences. On appeal, the
party challenging the sentence imposed by the trial court has the burden of establishing that
the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant
challenges the length, range, or manner of service of a sentence, it is the duty of this Court
to conduct a de novo review on the record 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).
However, this presumption “is conditioned upon the affirmative showing in the record that
the trial court considered the sentencing principles and all relevant facts and circumstances.”
State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also State v. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008). If our review reflects that the trial court failed to consider the
sentencing principles and all relevant facts and circumstances, then review of the challenged
sentence is purely de novo without the presumption of correctness. State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.
In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).
Agent Smitherman testified at the sentencing hearing. She reiterated that she was
involved in a narcotics investigation involving the Defendant Miller. The investigation
began in December 2005 following the discovery of a body in White County. According to
Agent Smitherman, State records showed that the Defendant Miller had not been employed
in many years, and there were no wages reported to social security. When asked if she ever
saw the Defendant go to work while he was under surveillance, she stated that she did not.
A search of the Defendant Miller’s residence did not reveal any legitimate source of
employment. She observed receipts where the Defendant had spent large amounts of cash,
purchasing such things as cars, electronics, jewelry, and furniture. According to Agent
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Smitherman, the Defendant lived in a “nice” apartment complex. The lease agreement
reflected that the Defendant earned $5,600 a month from two business; however, these
businesses were operated by relatives, and Agent Smitherman did not believe the Defendant
to be employed at these locations.
The thirty-four-year-old Defendant Miller testified that he had two children and that
he had been supporting them until his incarceration. He relayed, “I did things that’s
inappropriate for wages . . . .” He was last gainfully employed at Ticketmaster until his
termination in 2003. He claimed that he did not buy his Rolex watch with drug proceeds and
that he did not purchase the Hummer or Chevrolet Impala, which belonged to other people.
The Defendant acknowledged that he had previously violated a community corrections
sentence. He also admitted that he never worked at the businesses listed on the apartment
lease.
The presentence report reflected that, in addition to the felony convictions used to
establish is Range II classification, the Defendant had five misdemeanor convictions for
reckless driving, violation of the driver’s license law, evading arrest, and driving while his
license was revoked. The amended judgment form (for selling over twenty-six grams of
cocaine) entered into evidence for range classification purposes also indicated that the
Defendant had a probation violation sustained for that conviction, and he had to serve his
eight-year sentence. The presentence report also showed that the Defendant had previously
been given an opportunity to participate in numerous rehabilitation programs.
A. Length
The Defendant’s conduct occurred subsequent to the enactment of the 2005
amendments to the Sentencing Act, which became effective June 7, 2005. The amended
statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,
the trial court is free to select any sentence within the applicable range so long
as the length of the sentence is “consistent with the purposes and principles of
[the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
and principles include “the imposition of a sentence justly deserved in relation
to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
punishment sufficient “to prevent crime and promote respect for the law,”
[Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
“potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
40-35-103(5).
Id. (footnote omitted).
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The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.
To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.
The Defendant was convicted of three Class A felonies. As a Range II, multiple
offender, each offense carried a sentence of twenty-five to forty years. See Tenn. Code Ann.
§ 40-35-112(b)(1). In setting the length of each of the Defendant’s sentences, the trial court
found three enhancement factors to be applicable. First, the trial judge found that the
Defendant had a previous history of criminal convictions or criminal behavior in addition to
those necessary to establish his range, noting that the Defendant had prior misdemeanor
convictions. See Tenn. Code Ann. § 40-35-114(1). The trial court also determined that the
Defendant was a leader in the commission of the offense involving two or more criminal
actors: “Not necessarily the only leader, but he was clearly a leader in the commission of
these offenses.” See Tenn. Code Ann. § 40-35-114(2). Finally, the trial court noted the prior
revocation of the Defendant’s community corrections sentence and, thus, concluded that he
had failed to comply with the conditions of a sentence involving release into the community.
See Tenn. Code Ann. § 40-35-114(8). In mitigation, the trial court found that the
Defendant’s conduct neither caused nor threatened serious bodily injury. See Tenn. Code
Ann. § 40-35-113(1). The trial court then imposed a forty-year sentence for each conviction,
ruling as follows:
I’m not going to give any weight at all to the [mitigating factor] and I am going
to consider your criminal convictions, the fact that you are—had been involved
in release into the community for the very same thing and that you were a
leader in the offense. The prior misdemeanor convictions are not that great.
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But you were the leader in this offense, and you had been previously involved
in a release where the [c]ourt tried to kind of help you out.
B. Consecutive Sentencing
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of the following criteria
by a preponderance of the evidence:
(1) The defendant is a professional criminal who has knowingly
devoted the defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so declared
by a competent psychiatrist who concludes as a result of an investigation prior
to sentencing that the defendant’s criminal conduct has been characterized by
a pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about committing a crime
in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and victim
or victims, the time span of defendant’s undetected sexual activity, the nature
and scope of the sexual acts and the extent of the residual, physical and mental
damage to the victim or victims;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b). These criteria are stated in the alternative; therefore, only
one need exist to support the appropriateness of consecutive sentencing.
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In addition to these criteria, consecutive sentencing is also subject to the general
sentencing principles that the overall sentence imposed “should be no greater than that
deserved for the offense committed,” that it “should be the least severe measure necessary
to achieve the purposes for which the sentence is imposed,” and that the defendant’s
“potential for rehabilitation” be considered. Tenn. Code Ann. § 40-35-103(2), (4) and (5).
Additionally, we are advised that “the aggregate maximum of consecutive terms must be
reasonably related to the severity of the offenses involved.” Tenn. Code Ann. § 40-35-115,
Sentencing Commission Comments.
Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in
its discretion, order sentences to run consecutively if it finds any one of a number of criteria
by a preponderance of the evidence. In this case, the trial court ordered consecutive
sentences based on its finding that the Defendant “is a professional criminal who has
knowingly devoted [his] life to criminal acts as a major source of livelihood.” See Tenn.
Code Ann. § 40-35-115(b)(1). Applying State v. Wilkerson,6 905 S.W.2d 933, 939 (Tenn.
1995), the trial court also determined that the overall sentence related to the severity of the
offenses and was necessary to protect the public from further criminal conduct by the
Defendant.
C. Appellate Review
Our review reveals that the trial court considered the sentencing principles and all
relevant facts and circumstances, and correctly applied enhancement factors. The trial court
properly enhanced the Defendant’s sentence based upon his criminal history and because he
failed to comply with the conditions of a sentence involving release into the community.
According to the presentence report, the Defendant had five misdemeanor convictions and
a prior probation violation. The Defendant admitted to violating the terms of a prior
community corrections sentence. The trial court was also justified in finding that the
Defendant was a leader in the commission of the offense based upon the testimony presented
at trial. Being a leader in the commission of an offense involving two or more criminal
actors is not an element of the offense of conspiracy. Conspiracy involves an agreement
between two or more persons to engage in a criminal act; conspiracy does not require that
the State prove leadership in the criminal act. See State v. Santiago, 914 S.W.2d 116, 125
(Tenn. Crim. App.1995); State v. Little, 854 S.W.2d 643, 652 (Tenn. Crim. App. 1992)
(applying enhancement factor (2) to conspiracy convictions). These three enhancement
factors are sufficient to support the enhanced sentences. The weight to be given these
factors, as well as the mitigating factor, are within the trial court’s discretion.
6
The trial court noted that the Wilkerson factors were only required to be applied when the trial
court determined the Defendant to be a “dangerous offender”; however, the trial court chose to apply those
factors anyway.
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Morever, the evidence supports the trial court’s finding that the Defendant was a
professional criminal who knowingly devoted his life to criminal acts as a major source of
livelihood. Agent Smitherman’s testimony provided ample grounds to support this finding.
Because consecutive sentencing is warranted when at least one of the statutory criteria exists,
see State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995), the record supports the
imposition of consecutive sentences.
The thirty-four-year-old Defendant had spent much of his adult life in the criminal
court system and had no significant employment history. Additionally, the trial court
concluded that the overall sentence related to the severity of the offenses and was necessary
to protect the public from further serious criminal conduct by the Defendant. We note that,
in addition to his prior probation violation, the Defendant had previously been given
opportunities to participate in rehabilitation programs, obviously to no avail.
We conclude that the trial court did not err or abuse its discretion in setting the
Defendant’s sentences at forty years. We further conclude that the trial court did not err or
abuse its discretion by ordering consecutive sentences. The Defendant is not entitled to relief
on this issue.
Conclusion
Based on the foregoing reasoning and authorities, we affirm the judgments of the trial
court as to both of the Defendants’ convictions and sentences.
_________________________________
DAVID H. WELLES, JUDGE
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