### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs May 13, 2 00 9

STATE OF TENNESS EE v . JO HNNY L. BURNS

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2004-A- 592 Cheryl Blackbu rn, Judge

No. M2008- 01374-CCA -R3-C D - F iled Jul y 13, 2009

The Def endant, J ohnny L

. Bur

ns, was orig inally tried and convicted of one count of selling less than .5 g rams of coca ine within 1000 fee t of a school, a Class B felony

. Du e to an err or in jury instructions, this Court reve rsed and rema nded his case for a new trial. See State v. J ohnny L

. Bur ns, No. M2005-01945-CCA-R3-CD, 2007 WL 595632, (Tenn. Crim. App., Nashville, Fe b. 26, 2007). The Def endant was retrie d and ag ain convicted of one count of selling less than .5 g rams of coca ine within 1000 fee t of a school. I n t h i s ap p ea l
, he contends that the trial court err ed beca use it: (1) denied his reque st for supplementary police repor ts that he claims contain exculpatory information; (2) ref used to admit into evidenc e a photogr aph used by the defe nse in cross-e x amination; (3) denied his motion for a mistrial due to improper rema rks made by the prosec utor during closing arg ument; and (4) failed to instruct the jury on t h e l es s er -i n cluded offe nse of attempted sale of less than .5
g rams of coca ine within 1000 fee t of a school. After our revie w, we aff irm the judgme nt of the trial
court.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D A V I D H. W E L L E S , J
., delivere d the opinion of the court, in which A L A N E. G L E N N and R O B E R T W. W E D E M E Y E R , J J ., joined.

J eff rey DeVa sher, Assistant Public Def ender
, (on appea l); Virg inia Foa rd and Amy Goodwin, Assistant Publ ic Def

ender s (at trial), N ashville, Tenne ssee, f or the a ppellant, J ohnny

L . Bur ns.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Matthew Br y ant Haske ll, Assistant Attorney G e nera l; Victor S. J ohnson, I I I
, District Attorney Gene ral; and Br et Gunn, Assist a n t D is tr ic t A tt o r

n e y Gene ral, for

the appe llee, State of Te nnessee

.OP INION

F actual Background The events underlying this case occur red on Novemb er 5
, 2 003. The State’s proof established that on that evening
, Offic ers J ustin Fox and Ron Bla ck of the Twentieth J udicial District Drug Task F orce wer e conduc ting unde rcove r drug buy s in Nashville. Both we re dr essed in plain clothes and trave led i n an unmarked car. Of fice r Fox drove the car while Officer Bla ck sat in the front passeng er seat. Their car was equipped with a wire, allowing near by support personne l to monitor their interac tions with suspects. Howeve r, the car was not equipped to re cord the

conver sations.

At about 6:50 p.m., Offic ers Fox and Bla ck s aw a man both identified as the Def endant walking toward the corne r of L ewis and L afa y ette Streets. The Def

endant wa v ed t o them. Testimony by Da v i d Kline, manag er of the mapping depar tment at Metro Nashville Planning, established that this location is less than 1000 fee t from J .C. Napier Elementar y School. Offic er Fox pulled the car to the curb; t h e De fe n d an t stood next to the car ’s driver’ s side window. The Def endant asked what Offic er Fox neede d; Offic er Fox replied, “a thirty ,” meaning about thirty dollars wor t h o f crack cocaine

. The Defenda nt handed Office r Fox a sm all amount of whit e rock substance, and Offi c e r F o x h a n d e d th e D e f

e n d a n t p r e v io u sly photocopied ten and twenty -dollar bills. Offic er Fox said the “code word” t o indicate that support pe rsonnel should move in and a rre st the Def endant. I n order to stall the Def endant and preve nt him from flee ing, Offic er Fox also asked the Def endant if he had a phone number Offic er Fox could call if he ever neede d larg er drug quantities. Offic er Fox testified that the Def endant g ave him a phone number, and Offic er Bla ck testified that he hea rd Off icer Fox ask for a

phone number

but did not hear whe ther the D efe ndant re sponded.

L ess than a minute afte r Offic ers Fox and Bla ck had first made contac t with the Def endant,

s u p p o rt personne l arr ived and took him into custody

. A sear ch of the Def endant reve ale d n o additional drug s, and also did not reve al any drug para pherna lia such as a cra ck pipe. Detec tive Corey Sanderson field-teste d the white rock substance Offic er Fox had rec eived from the Def endant; it tested presumptively positive for cra ck coca ine. Police also found Offic er Fox’s ten and twenty

d o l l ar b i l l s on the g round wher e the Def endant had been standing

. The Def endant was put in a “paddy wag on” with other suspects ensna rled in similar underc over buy s. He wa s jailed later tha t evening

. Special Ag ent Mark Dunlap, a fore nsic scientist with the Tenne ssee Bur eau of I nvestig ation,

was cer tified as an expert in f

orensic chemistry

. He tested the white rock substance rec eived from the Def endant a nd confirme d it to be .1 gr ams of coc aine.

The Def endant testified on his own behalf

. He said that he h ad been at a friend’ s house “g etting high” immediately befor e the sale. He left the friend’ s house to g et cig are ttes, cig ars, juice, and a lighter at a near

by convenie nce store. He took his rema ining cra ck coca ine with him in order
to preve nt his friend from smoking it during his absenc e. As he was returning to his friend’ s house, a car pull ed up. He had not wave d to the occupants of the car. The driver asked the Defenda nt if

-2-he “knew any body g ot a thirty .” The Def endant assumed Offic ers Fox a nd Bla ck wer e drug users, but he also knew that white people tended t o at t ra ct p o lice when in that are a. I n order to entice Offic ers Fox and Bla ck to leave the are a, he decide d to sell them the small amount of cra ck coca ine on his person. He g ave it to Off icer Fox and rec eived thirty

dollars in return. H ad he not sold the

cra ck coc aine to the of

fice rs, he planne d to roll it i nto the end of a cig are tte and smoke it.

The State called L ieutenant Wil liam Macka ll as a rebuttal witness. After being cer tified as an expert in narc otics investiga tions, L t. Macka ll testified t hat he ha d never known cr ack c ocaine
, rathe r than powder coca ine, to be rolled into a cig are tte or ci gar

. He al s o testified that, in his experience , the Def

endant would ha

ve been carry

ing a crack pipe had he be en a c asual user rathe r than a ha bitual coca ine dea ler.

The jury convicted the Def endant of one count of selling less than .5 g rams of cra ck coca ine within 1000 feet of a

school. He nowappea ls.

Analysis I. Exculp atory Inform ation The Def endant first contends that the trial court err ed in denying his motion to order the State
to provide him with copies of sevente en supplemental repor ts made by participa ting support office rs the night of his arr est. The Def endant contends that these repor ts are exculpatory beca

use they make no mention of Off

icer Fox’s reque st that the Defe ndant provide him with a phone number.

I n Br ady v. Maryland, 317 U.S. 83, 87 (1963), the United States Supreme Court held that the State has a constitutional duty t o furnish an acc used with any exculpatory evidenc e perta ining to ei t h er the acc used’s g uilt or potential punishment. The State must also disclose evidenc e which could be used by an acc used to impeach a witness. See Gig lio v. United States, 405 U.S. 150 (1972).

Tenne ssee has adopted a four- prong test to evalua te an alleg ed Br ady violation. A defe ndant
must establish that: (1) he made a proper reque st for the production of the evidenc e, u n l ess the evidenc e was obviously exculpatory in nature and helpful to the acc used, in which case the State is require d to produce the information whether requested or not; (2) the informa tion must have be en favor able to the Def

endant; (3) the Sta t e must have suppressed the information; and (4) the information must have been materia l. State v. Edg in, 902 S.W .2d 387, 389 (Tenn. 1995). I n order
to show materia lity
, a defe ndant must demonstrate a re as o n able probability that the result of the
proce eding would have been differ ent had th e information been disclosed. See United States v. Ba g ley , 473 U.S. 667, 682 (1985).

The trial c ourt denied the Def endant’ s motion after the f ollowing discussion:

[Defense Counsel] : Simpl y that Offic er Fox
, who testified that statements wer e made; and g iven that other office rs would have prepa red police repor

ts and we re listening over a wire, if their repor ts do not repor

t those statements, then the lack of

-3-a repor t would be exculpatory ; and, there fore
, those repor ts should be provided to the [D] efe ndant.

. . . . [The State]: None of the takedown office rs who are the office rs that she’s r efe rring
to would have been listening over the wire, attempted to detail any conver sation with the [D] efe ndant and Offic er Fox. Their repor ts are just of the summary nature of the deal wa s conclude d and we went in. They don’t attempt to give any descr iption of what was said. So the absenc e of an y particula r phrase or part of what they said, there ’s nothing that contra dicts Offic er Fox. There ’s n o t h i n g t here wher e those office rs attempt to rec reate the conve rsation, whatsoe ver.

The trial cour t co n cl uded that the disputed repor ts wer e not rende red exculpatory mere ly “beca u s e an office r didn’t write something down.” I n response , the Def endant cites Ky les v. Whit ley
, 514 U.S. 419, 450-51 (1995). I n Ky les, a murder case , police believed that the killer had left his c ar in a particula

r parking lot. The United States Supreme Court deeme d exculpatory a list of ca rs pre sent in that parking

lot, because the list did not contain the de fenda nt’s car . I d.

We ag ree that in Ky les the fac t that “an office r didn’ t wr i t e s o m ething down” was exculpatory ; that was the case , howeve r, beca use the police cre ated a list purporting to rec ord ever y

car in the parking lot. The State’s re sponse in the conve rsation above , howeve r, indicate s that the supplemental reports at i ssue i n this case did not purport to rec ord an y co n versa tions betwee n the Def endant a nd police. Corrobor ation of Officer Fox’s phone number reque st theref ore a ppear s to have been absent as a matter of standard policy ; Offic er Fox testified that such a reque st was a routine stalling ta ctic.

We need not consider eac h Br ady fac tor, beca use we conclude that the information was not

m at er i al. I f impeache d reg arding their lack of corr oboration, Offic er Fox likely would have explained that the s upplemental reports did not attempt to det ai l conver sation betwee n police and

a targ et, and that the absenc e of his phone number reque st was to be expected. As the Def endant has not de monstrated a rea sonable probability that the result of his tria l w ould ha ve been differ ent had the supplemental re ports been pr oduced, this issue is without merit.

II. Adm ission of Defens e P hotograph At the Def

endant’ s previous trial, Offic er Bla ck had marke d a photogr aph of the crime scene to indicate the location at which he and Officer Fox purcha sed drugs from the Defenda nt. At this trial, he also marke d a simil ar photogr aph to indicate wher e he had first seen the Def endant. Noticing that the two photogr aphs had been marke d in differ ent locations, defe n s e co u n s el asked Offic er Bla ck to explain the inconsistency

. Af t er revie wing his former testimony
, Offic er Bla ck responde d that, at the first trial, he had understood defe nse counsel to be asking wher e the purcha se had taken place ; at this trial, he understood defe nse counsel to be asking wher e he and Offic er Fox

-4-first saw the Def endant. The inconsistency explained, the trial court denied the Def endant’ s motion to introduce into evidenc e the pictur e fr om his previous trial.

I t appea rs that the photogr aph from the previous trial was offe red to prove a prior inconsistent
statement for the purpose of impeaching the office r’s cre dibilit y

. Offic er Bla ck acknow ledg ed and explained the inconsistency in his prior testimony . Under these c ircumstance s, ext rinsic evidenc e of a prior inconsistent statement is not admissible. State v. Martin, 964 S.W .2d 56 4
, 5 6 7 (Tenn. 1998) (interpr eting Tenne ssee Rule of Evidence 613). The trial court there fore did n o t ab u s e its discretion in excluding it.

III. Pr osecutor ial Miscondu ct The Defenda

nt next contends that the t rial co u rt er red in denying his motion for a mistrial afte r ce rtain re marks we re ma de by the State during its rebuttal in closing a rg ument:

[The State]: L ook, a conviction for casua l exchang e is a not g uilty in this

case

. Yo u might as well vote not g uilty

. We’re try ing this case beca use this man sold coca ine about nine hundred fee t from t h i s s ch o o l. Not some casua l exchang e in a ding y room wher e people are smoking crac k coca ine betwe en ea ch other . Out there on a street, a place that kids pass by to g o to school. You know, I was wrong

. I was wrong when I said that there was no victim in these kinds of case s. They ’re all

over the place

. I n fac t, I rea d it to y ou in the indictment as to who the victim is. You
may not have paid any attention to it. I t’s some arc haic lang uag e that is at the end of the indictment. Remember what I said? [The Def endant] did sell within a thousand fee t of a school

. . . ag ainst the peac e and dignity of the State of Tenne ssee. There ’s
y our victim, society
, the State of Tenne ssee. You want a more specific victim? There they are

. You can’ t see them. There ’s a brick house around them, but they ’re in the house. T h ey ’r e in that house. They ’re in that house. They ’re in all these houses. Her e they are , rig ht here

. Can y ou see the m? They ’re there and ther e and there and there and there

. They ’re over here

. There ’s y our victims. They ’re in that building.

And [ the De fe n d ant] is try ing to avoid responsibil ity for the crimes ag ainst the people in th i s ci rc le, in this City
, in this State, by making up something to y ou and hoping y ou can squeeze it in to some lesser offe nse that belong s to a people that have room in a party

. I ’ll loan y ou a li ttle bit. I f t h i s ai n ’t a s ale, there ain’t never been one . And I

don’t car e if it’s one week or one mont h or one y ear or four y ear s afte r the da te that he did it, we’ re he re this wee k in this [c] ourt in this Ci ty , to hold him accounta

ble and r esponsible. That’s y our duty

.

The Def endant did not object or move for a mistrial during the State’s rebuttal. I mmediately afte r closing arg uments, the jury was excused for a short brea k. At this time, the Def

endant moved for a mistrial. The State contends that the issue is waived. See Tenn. R. App. P. 36(a)

. I n response , the Def endant cites State v. Robinson, 971 S.W .2d 30, 42-43 (Tenn. Crim App. 1997), for the

-5-proposition that “either a contempora neous objection or a motion for mistrial pr events a waiver of the issue.” I n Robinson, howe ver, this Court simply stated that “[t] he def

endant’ s failure to make

a contempora n eous objection or motion for mistrial constitutes a waiver of the issue absent the exis tence of plain err or.” I d. We rea d the word “conte mporane ous” as modify ing both “objec tion” and “motion for mistrial” in this quote; it there fore does not, as the Def endant urg es, require either
a conte mporane ous objection or a non- contempora neous motion for mistrial.

The rec ord ref

lects that the trial court denied the motion for a mistrial not based upon waiver
, but be cause the trial court deter mined that the comments wer e not imprope r. We the ref ore revie w the issue on the mer its.

I n succe ssful claims of prosec utorial misconduct, a defe ndant must show that the arg ument

was so inflammatory or the conduct so improper that it aff ecte d the verdic t to h i s detriment. Har ring ton v. State, 385 S.W .2d 758, 759 (Tenn. 1965). Tenne ssee cour t s “h ave traditionally provided counsel with a wide latitude of discretion in the content of their final arg ument” and trial judge s with “wide discreti o n in control of the arg ument.” State v. Z irkle, 910 S.W .2d 874, 888 (Tenn. Crim. App. 1995). A party ’s closing arg ument “must be temperate, predic ated on evidenc e introduced during the trial, rele vant to the issues being tried, and not otherwise improper under the fac ts or law.” State v. Middlebr ooks, 995 S.W .2d 550, 557 (Tenn. 1999)

.

For a defe ndant to be entitled to a new trial on the basis of alleg edly improper rema rks during closing arg uments, the remarks m u s t be shown to have prejudice d the case by aff ecting the j ury ’s verdic t. Middlebrooks, 995 S.W .2d at 559. I n deter mining whether this occur red, we consider the following fac tors: (1) the conduct viewed in light of the circ umstances and fac ts in the case ; (2) any

curative measure s taken by the trial court and the prosec ution; (3) the prosec utor’s intent in making the improper statements; (4) the cumulative eff ect of the prosec utor’s statements and other err ors in the re cord; a

nd (5) the r elative stre ng th and wea kness of the c ase. I d. at 560.

The Defen d ant relies upon this Court’s comment in State v. Dedonna s R. Thomas, No. W2000-01465-CCA-R3-CD, 2002 WL 1558687 at *4 (Tenn. Crim. App., J ackson, J an. 30, 2002), that “[a]rgume nts that invoke the ‘War on Drug s’ as a rally ing point to return a g uilty verdic t can be particula rly pernic ious.” I n our vi ew, the State did not invoke t he “War on Drug s” i n its rebuttal; rathe r, it addre ssed the issue of whether drug sales are victimless crimes and arg ued that such sales harm society g ener ally and cre ate a neg ative environment for near by residents. The State prese nted

a strong case which included the Def endant’ s own testimony that he sold cra ck coca ine in exchang e for thirty dollars. We conclude that the comments objected to wer e not so inflammatory or improper that the ver dict was a ffe cted to the De fenda nt’s prejudice . This issue is without merit.

IV. Jury Instruction on Attem pted Sale T h e De fe n d an t next contends that the trial court err ed by denying his reque st for a jury instruction on attempted sale of l ess t han .5 g rams of coca ine because the post-arr est discover y of Offic er Fox’s thirty dollars on the g round supports an infe renc e that the De fenda nt never rec eived that thirty dollars.

-6-Attempt ed sale of less than .5 g rams of coca ine is a lesser- included offe nse of sale of less

t han .5 g rams of coca ine. See State v. Bur ns, 6 S.W .3d 453, 466-67 (noting that “an at t em p t t o commit the offe nse char g ed” is a lesser included offe nse). Tenne ssee Code Annotated section 40- 18-110(a ) states that a

trial judg e

shall not ins t ru ct the jury as to any lesser included offe nse unless the judge deter mines that the rec ord contains any evidenc e which rea sonable mind s could

acc ept as to the lesser included offe nse. I n making this deter mination, the trial judge shall view the evidenc e liberally in the light most favor able to the exis t ence of the lesser included offe nse without making any judgme nt on the cre dibilit y of evidenc e. The trial judge shall also deter mine whether the evidenc e, viewed in this light, is leg ally sufficie nt to support a conviction for the lesser inc luded offe nse.

The Def endant appar ently arg ues that the pre s en ce o f Offic er Fox’s thirty dollars on the
g round afte r his arr est is leg ally sufficie nt to support the propo s i t i o n that he was unsucce ssful in

rec eiving that money from Offic er Fox at the time of the alleg ed exchang e, instead letting it f all to the g round wi t h o u t ever taking possession. We disag ree

. Although the money ’s prese nce on the
g round is not inconsistent with the attempt theory
, it is not evidenc e of that theory ’s validity

. I n the absenc e of any testimony or evidenc e to the ef fe ct t h at t h e money fell to the g round befor e being

rec eived by the De fe n d an t , we are left with testimony by Offic er Fox, Offic er Bla ck and the Def endant himself that the Def endant took the thirty dollars in exchang e for a small amount of white rock substance. The trial court did not violate Tenne ssee Code Annotated section 40-18-110( a) in denying the Def

endant’ s reque st for an attempt inst ruction.

Conclusion Ba sed on the for eg oing a

uthorities and re asoning , we a ffirm the D efe ndant’s convic tion.

______________________________ DAVI D H. WEL L ES, J UDGE

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