FILED

February 2, 1996

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER 1993 SESSION

STATE OF TENNESSEE, )

) No. 01C01-9307-CC-00224

Appellee, )

) Williamson County

v. )

) Hon. Henry Denmark Bell, Judge

CATHERINE WARD, )

) (Promoting Prostitution)

Appellant. )

For the Appellant: For the Appellee:

David L. Raybin Charles W. Burson

Attorney at Law Attorney General & Reporter

424 Church Street, 22nd Floor

Nashville, TN 37219 Christina S. Shevalier

(Appeal Only) Assistant Attorney General

 450 James Robertson Parkway

R. Ray Galbreath Nashville, TN 37243-0493

Attorney at Law 

901 Stahlman Building Joseph D. Baugh

Nashville, TN 37201 District Attorney General

(Trial Only)

Timothy L. Easter

Asst. District Attorney 

General

Post Office Box 937

Franklin, TN 37065

OPINION FILED:____________________________________

REVERSED & REMANDED

Penny J. White

Judge
2

O P I N I O N

Appellant, Catherine Ward, was convicted of promoting

prostitution, a Class E felony, by a jury. The trial court found

that appellant was a standard offender and imposed a Range I

sentence consisting of a fine of $3,000 and confinement for one

year in the Department of Correction.

Appellant presents seven issues for review. She contends

that: 

1. the state failed to prove that

appellant was knowingly promoting

prostitution and that the conduct

constituted sexual activity within

the meaning of the statute;

2. the trial court abused its

discretion in permitting a

prosecution witness to testify that

two prostitutes entered guilty pleas

in violation of Tennessee Rules of

Evidence 803(22);

3. the trial court abused its

discretion in permitting a

prosecution witness to testify that

a prostitute told her that appellant

was her "boss";

4. the search of appellant's purse and

motor vehicle violated the Fourth

Amendment to the United States

Constitution and Article 1, § 7 of

the Tennessee Constitution;

5. the trial court abused its

discretion in permitting a Davidson

County officer to testify to the

results of his investigation into

the prostitution business in

Davidson County;

6. she was denied her constitutional

right to the effective assistance of

counsel by trial counsel; and 

7. the trial court committed error in

refusing to suspend appellant's

sentence and grant her probation.

After a careful review of the record, we find that the

glaring deficiencies of trial counsel denied appellant her
 We note, however, that the trial judge failed to follow the 1

guidelines in State v. Ashby, 823 S.W.2d 166 (Tenn. 1992). In

fact, the trial judge never considered any form of alternative

sentencing. As a Range I, standard offender, sentenced for a Class

E felony to a one-year sentence, appellant is presumed to be a

favorable candidate for alternative sentencing absent evidence to

the contrary. Tenn. Code Ann. § 40-35-102(6)(1995 Supp.). If

appellant is convicted upon retrial, the trial court should

consider the criteria for alternative sentencing found in the

statutes and should place findings on the record.

3

constitutional right to a fair trial. Appellant's conviction must

be reversed and the case remanded for a new trial.

In view of our holding, we will discuss issues 2, 3, 4,

5, and 6 in connection with the ineffective assistance of counsel.

Since the case is being remanded for new trial, we need not

consider whether the trial court erred by sentencing appellant to

serve one year in the state penitentiary rather than granting

probation or some other form of alternative sentencing. 

1

I. FACTS

Catherine Ward was the owner and operator of a dating and

escort service in Nashville. She had thirty-nine different

listings in the yellow pages of the Nashville phone book. Although

each listing was in a different name and had a different telephone

number, all of the thirty-nine telephone numbers reached

appellant's place of business and were answered by the same person.

In this case, on the evening of October 3, 1991, Jimmy

Hester, a detective, called Beth's Touch of Class. The telephone

number was listed in appellant's name and was answered at

appellant's place of business. The officer made arrangements for

two women to come to his room at the Hilton Hotel in Brentwood.

After several telephone calls, Sherman Ann "Sherrie" Swartz and

April Lynn Ashworth came to the room. Swartz collected the agreed

amount of $350. After undressing in the bathroom, the two women
 Only Agent Hester testified to these events. The person with 2

whom he spoke at Beth's Touch of Class was never identified. The

second woman who returned his calls was identified only as

"Crystal." She did not testify. Neither Swartz nor Ashworth

testified at trial. The state entered a video tape made while

Swartz and Ashworth were in the hotel room into evidence. (The

camera was disguised as a lamp.). 

4

lay in bed facing each other. They had not touched one another

when Hester signalled officers in an adjoining room to arrest the

two women. The women were arrested, booked at the Brentwood Police

Department, and issued citations for prostitution. Agent Hester

testified that the two women later pled guilty to prostitution, a

misdemeanor offense.2

Later that night, Mary McGaughy, a detective who

participated in the sting, saw Swartz in the parking lot of the

Hilton Hotel. Swartz was standing beside a car talking to the

driver. When McGaughy asked Swartz what she was doing, Swartz told

her that she was talking to her boss. McGaughy told Swartz to

leave the parking lot. McGaughy learned that appellant was the

driver of the motor vehicle. She retained appellant's driver's

license until she informed the Brentwood police officers who were

participating in the investigation. An officer searched

appellant's purse and seized a pager, an address book, a quantity

of cash, and appellant's business cards. A search of the interior

and trunk of the vehicle uncovered nothing of interest. Appellant

was arrested and charged with promoting prostitution. 

Over objection, Sergeant Joe Blakley of the Metropolitan

Police Department testified at length concerning his involvement in

a state-wide task-force investigating prostitution. He also

detailed the results of a search he conducted at appellant's

business address approximately one year prior to appellant's arrest
5

in this case. Sergeant Blakley observed the Swartz and Ashworth

arrest but did not observe the arrest or search of appellant.

Appellant described her business as "legitimate." A

written agreement which she had with each person who worked for her

designated the person as an independent contractor, not an

employee, and provided that the person would not engage in any

illegal conduct. The women she employed were engaged to escort men

to parties, dinners, and other social events and to provide

conversation and companionship. Occasionally, the women acted as

models. On the night of the arrests, appellant was advised that

Swartz and Ashworth escorted a man to a dinner party at the Hilton.

When Swartz and Ashworth failed to check in with the dispatcher and

did not respond to their pagers, appellant was notified. She then

went to the hotel to see if they needed assistance. Her arrest

followed.

II. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

When an accused challenges the sufficiency of the

convicting evidence, this court must review the record to determine

if the evidence adduced at the trial is sufficient "to support the

finding by the trier of fact of guilt beyond a reasonable doubt."

Tenn. R. App. P. 13(e). This rule is applicable to findings of

guilt based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Dykes,

803 S.W.2d 250, 253 (Tenn. Crim. App.), perm. to appeal denied,

(Tenn. 1990).

In determining the sufficiency of the evidence, this

court does not reweigh or reevaluate the evidence. State v.
6

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court

substitute its inferences for those drawn by the trier of fact from

circumstantial evidence. Liakas v. State, 286 S.W.2d 856, 859

(Tenn. 1956). To the contrary, this court is required to afford

the State of Tennessee the strongest legitimate view of the

evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State

v. Cabbage, 571 S.W.2d at 835.

Questions concerning the credibility of witnesses, the

weight and value to be given the evidence, as well as all factual

issues raised by the evidence are resolved by the trier of fact,

not this court. Id. In State v. Grace, 493 S.W.2d 474 (Tenn.

1973), our Supreme Court said: "A guilty verdict by the jury,

approved by the trial judge, accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the

theory of the State." State v. Grace, 493 S.W.2d at 476.

Since a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, id.,

appellant has the burden of illustrating why the evidence contained

in the record is insufficient to support the verdicts returned by

the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). This court will not disturb a verdict of guilt due to the

sufficiency of the evidence unless the facts contained in the

record, and any inferences which may be drawn from the facts, are

insufficient, as a matter of law, for a rational trier of fact to

find the accused guilty beyond a reasonable doubt. State v.

Tuggle, 639 S.W.2d at 914.
 Neither the dispatcher nor the officer made specific 3

reference to any sexual activity. However, the circumstances and

the double entendres contained in the conversations are sufficient

to support the inference that Hester was seeking to watch two

"girls" perform lesbian sex. 

7

In this case, the evidence contained in the record is

sufficient to support a finding by a rational trier of fact that

appellant was guilty of promoting prostitution beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307,

(1979). Agent Hester called the business admittedly owned by

appellant and spoke to a "dispatcher." "Crystal" returned his

call. When the agent requested two women, Crystal said she did not

know what to charge but she said she would find out and call Hester

back with a price. The dispatcher in turn called Hester, advised

him that the woman who called him was not comfortable doing what

Hester wanted, and that the company was trying to find two "girls"

who would meet his requirements. Later, Swartz and Ashworth 3

appeared at Hester's room. Hester paid Swartz for the services to

be performed, the two women undressed, and climbed into bed. 

Appellant admitted that she was the sole owner and

proprietor of Beth's Touch of Class, one of the thirty-nine

entities that comprised the escort service. When a "gentleman"

called any of the thirty-nine numbers, the call reached the same

dispatcher. On October 3, 1991, the fees charged were $120 for a

half hour and $175 for a full hour of one girl's time, and Hester

paid the two women a total of $350. Although the women never

engaged in any sexual acts with each other or with Hester, their

activities certainly support an inference that they were about to

engage in sexual activity and that the escort service was aware of

that activity. When all of the evidence presented at trial is
8

considered, the evidence is sufficient to support appellant's

conviction for promoting prostitution beyond a reasonable doubt.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

After her conviction, appellant obtained new counsel. In

a motion for new trial, counsel contended that, among other errors,

appellant had been denied effective assistance of counsel at trial

because of the following deficiencies in representation: 

1. the failure to file a pretrial

motion to suppress as evidence a

pager, address book, business cards,

and approximately $787 in cash,

which were obtained from appellant's

purse by a Brentwood police officer;

2. the failure to object to Jimmy

Hester's testimony that the two

women who came to the hotel on the

evening in question had been

convicted of prostitution following

their guilty pleas to the offense;

3. the failure to object to the

testimony of Mary McGaughy that

Sherman Ann "Sherrie" Swartz told

her that she was talking to her

"boss" while standing next to

appellant's motor vehicle;

4. the failure to object to the

testimony given by Sergeant Joe

Blakley of the Metropolitan Police

Department; and

5. the failure to move the trial court

pretrial for an instruction on the

punishment for the principle offense

alleged in the presentment and the

lesser included offense.

The trial judge found that while some of the testimony

complained of should have been excluded, the erroneously admitted

evidence was harmless in the context of appellant's trial. The

judge concluded that defense counsel's actions or failure to act

had been consistent with the defense theory that appellant was

engaged in a legitimate business and that any wrongdoing had been
 Cooper v. State, 849 S.W.2d 744, 746 (Tenn. 1993); Butler v. 4

State, 789 S.W.2d 898, 899 (Tenn. 1990); Bankston v. State, 815

S.W.2d 213, 215 (Tenn. Crim. App.), perm. to appeal denied, (Tenn.

1991). 

 Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. 5

to appeal denied, (Tenn. 1990); Brooks v. State, 756 S.W.2d 288,

290 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1988);

Vermilye v. State, 754 S.W.2d 82, 84 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1987).

9

committed by Swartz and Ashworth without her knowledge or

encouragement. Therefore, the court concluded that appellant was

not denied effective assistance of counsel. We respectfully

disagree.

1. LEGAL STANDARDS

When there is a post-trial hearing on the issue of

whether the accused was denied the effective assistance of counsel,

the findings of fact made by the trial court at the conclusion of

the hearing have the weight of a jury verdict. Consequently, this

court is bound by the trial court's findings of fact unless the

evidence contained in the record preponderates against the judgment

entered by the trial court. 

4

Since the trial court found that appellant failed to

establish she was entitled to a new trial on this ground, this

court must review the record to determine whether the trial

court's findings of fact preponderate against the judgment entered

in this case. In doing so, this court is bound by certain well- 5

established rules governing appellate review. 

First, this Court cannot reweigh or reevaluate

the evidence; nor can we substitute our

inferences for those drawn by the trial judge.

Second, questions concerning the credibility

of the witnesses, the weight and value to be

given their testimony, and the factual issues

raised by the evidence are resolved by the

trial judge, not this Court. Third, appellant

has the burden in this Court of illustrating

why the evidence contained in the record
 Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). 6

 Strickland v. Washington, 466 U.S. 668, 693, (1984); 7

Williams v. State, 599 S.W.2d 276, 279 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1980). 

 Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); Vermilye, 8

754 S.W.2d at 85. In State v. Martin, 627 S.W.2d 139, 143 (Tenn.

Crim. App. 1981), perm. to appeal denied, (Tenn. 1982), this court

said "[t]here are no perfect lawyers." In Cureton v. Tollett, 477

S.W.2d 233, 235 (Tenn. Crim. App. 1971), cert. denied, (Tenn.

1972), this court said: "In the course of a trial, many legal

situations occur which present choices in many directions. The

lawyer must decide which course to take. [The lawyer] is not

required to be infallible." 

 State v. Cooper, 849 S.W.2d 744, 746 (Tenn. 1993); Hellard 9

v. State, 629 S.W.2d at 9; Vermilye v. State, 754 S.W.2d at 85;

see also State v. Kerley, 820 S.W.2d 753, 756 (Tenn. Crim. App.),

(continued...)

10

preponderates against the judgment entered by

the trial judge.

Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1990).

Before an accused is entitled to a new trial on the

ground that trial counsel's representation was ineffective, the

accused must prove by a preponderance of the evidence that (a) the

services rendered or advice given by counsel fell below the "range

of competence demanded of attorneys in criminal cases," and (b) 6

the unprofessional conduct or errors of counsel "actually had an

adverse effect on the defense." 

7

In determining whether the accused has factually

established a deprivation of the constitutional right to the

effective assistance of counsel, we recognize that neither the

State nor Federal Constitution requires perfect representation.8

Second, it is not our function to "second guess" trial counsel's

tactical and strategic choices pertaining to matters of defense

unless these choices are made without knowledge of the relevant

facts or the law applicable to the issue. "[T]he defense 9
(...continued)

perm. to appeal denied, (Tenn. 1991); Sherrill v. State, 772 S.W.2d

60, 62 (Tenn. Crim. App. 1988), perm. to appeal denied, (Tenn.

1989); Smith v. State, 757 S.W.2d 14, 18 (Tenn. Crim. App.), perm.

to appeal denied, (Tenn. 1988); State v. Swanson, 680 S.W.2d 490

(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1984); McBee v.

State, 655 S.W.2d 191, 193 (Tenn. Crim. App.), perm. to appeal

denied, (Tenn. 1983); Tolliver v. State, 629 S.W.2d 913, 914-15

(Tenn. Crim. App. 1981), perm. to appeal denied, (Tenn. 1982). 

 Hellard v. State, 629 S.W.2d at 9. 10

 Tolliver v. State, 629 S.W.2d at 914-15; Williams v. State, 11

599 S.W.2d at 279-80. In Long v. State, this court said:

Not every mistake of judgment or misconception

of law made by defense counsel will deprive

the accused of his constitutional right to

effective representation, nor is the accused

deprived of such right because a different

procedure or strategy upon the part of counsel

might have produced a different result.

Long v. State, 510 S.W.2d 83, 88 (Tenn. Crim. App.), cert. denied,

(Tenn. 1974)(citations omitted).

 State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App.), 12

perm. to appeal denied, (Tenn. 1988); Long v. State, 510 S.W.2d at

88.

 753 S.W.2d at 149 (citations omitted). 13

11

attorney's representation, when questioned, is not to be measured

by '20-20 hindsight.'" Third, an accused is not deprived of the 10

effective assistance of counsel because a different procedure or

strategy might have produced a different result. Fourth, the 11

entire record, not "isolated acts or omissions," must be considered

in determining whether the petitioner was adequately represented.12

As this court said in State v. Mitchell:

Protection of an accused's right to

effective assistance of counsel does not

require that his attorney's every act or

omission claimed to be deficient be examined

in isolation. The issue is whether

considering the case as a whole, including

performance by the accused, counsel provided

reasonable professional assistance. . . . As

stated in Strickland v. Washington, 'the

ultimate focus of inquiry must be on the

fundamental fairness of the proceeding whose

result is being challenged.'13
 Strickland v. Washington, 466 U.S. at 689. 14

 Strickland v. Washington, 466 U.S. at 689. As the United 15

States Supreme Court said in Strickland: "There are countless ways

to provide effective assistance in any given case. Even the best

criminal defense attorneys would not defend a particular client in

the same way." Id.

12

Fifth, there is "a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance

. . . ." Thus, petitioner must overcome "the presumption that, 14

under the circumstances, the challenged action 'might be considered

sound trial strategy.'"15

2. FAILURE TO FILE MOTION TO SUPPRESS

Appellant argues that Lieutenant Jones, the coordinator

of this undercover operation, arrested her while searching her

purse. She contends that trial counsel was ineffective in failing

to seek suppression of this evidence. The state argues that

appellant was arrested before Jones searched the purse and vehicle.

In the alternative, the state argues that this evidence, consistent

with the operation of a legal dating service, was not prejudicial

to appellant. 

Since no motion to suppress was filed, and consequently

no hearing conducted, the facts surrounding the search and seizure

are sketchy. It is impossible for us to say without question that

the evidence should have been suppressed. It is clear, however,

that defense counsel should have filed a motion to suppress. The

officers had no search warrant. No exigent circumstances are

apparent. Therefore, the timing of the arrest and the basis for

the arrest are critical to the legitimacy of the search. A more

fully developed record of the circumstances surrounding the search

would have allowed an analysis of the suppression issue. 
13

Appellant has the obligation of proving the elements of

ineffective assistance of counsel. McBee v. State, 655 S.W.2d 191,

195 (Tenn. Crim. App. 1983). Thus, appellant would have to

establish that counsel was deficient in failing to file the motion,

and that, the failure prejudiced appellant. At the post-conviction

hearing, appellant should have offered the evidence which would

have been offered had a suppression motion been filed. We could

have before us a record sufficient to enable us to consider whether

the failure to file the motion prejudiced appellant. On this

insufficient record, however, we cannot conclude that the failure

to file a motion to suppress was a deficiency on the part of

counsel or that it prejudiced appellant in this case. 

3. FAILURE TO OBJECT TO EVIDENCE ON CONVICTIONS

During the direct examination of Agent Jimmy Hester, the

following colloquy occurred:

Q. [Were] Swartz and Ashworth

. . . arrested for prostitution that

night?

A. Yes, sir. They were issued

citations and they were taken to the

Brentwood Police Department and

fingerprinted and photographed,

interviewed and then issued a

citation.

Q. And subsequently those two pled

guilty to that charge; did they not?

A. Yes, sir.

Trial counsel did not object to this testimony.

Appellant argues that "the State established one of the

elements of the offense by the hearsay convictions of the two women

when there was absolutely no opportunity for the defendant to

confront or cross-examine these two women as to why they 'plead
 That rule provides: 16

Judgment of Previous Conviction. -- Evidence

of a final judgment adjudging a person guilty

of a crime punishable by death or imprisonment

in excess of one year to prove any fact

essential to sustain the judgment, but not

including, when offered by the prosecution in

a criminal case for purposes of other than

impeachment, judgments against persons other

than the accused. The pendency of an appeal

may be shown but does not affect

admissibility.

 This issue, which concerns the admissibility of the 17

statements made by the dispatcher, "Crystal," Swartz, and Ashworth,

was raised in appellant's motion for new trial. It was overruled

without explanation in the trial judge's order.

14

guilty' to prostitution." She further argues that this evidence

was "devastating against the defense" and cannot be considered

harmless in the context of this case. The trial judge found and

the state acknowledges that the admission of this evidence violated

the Tennessee Rules of Evidence. However, the state argues that

the admission of this evidence was harmless because there "was

ample proof presented at trial that the sole reason the two women

were in the hotel room was to engage in prostitution." 

This evidence was hearsay. It is not admissible as an

exception under Tennessee Rules of Evidence 803(22). Further, 16

since testimony was the only direct evidence of the women's intent

to engage in prostitution, it was not harmless. Since neither

woman testified at trial, appellant could not confront or crossexamine the witnesses. The admission was error and prejudiced

appellant. 

Although not directly addressed in this appeal, we are

compelled to address other parts of Hester's testimony since it may

well arise upon retrial. Agent Hester related numerous statements 17

made during his conversations with the "dispatcher," "Crystal," and
 See Neil P. Cohen, Donald F. Paine, Sarah Y. Sheppeard, 18

Tennessee Law of Evidence § 803(2) (1990).

 State v. Smith, 868 S.W.2d 561, 576-77 (Tenn. 1993). 19

15

the two women who came to the hotel room. Nearly all were

introduced for "the truth of the matter asserted" and are

statements, "other than one made by the declarant while testifying

at the trial or hearing." Tenn. R. Evid. 801(c). Unless an

exception to the hearsay rule is available, such statements are not

admissible. Defense counsel objected at one point and the trial

judge agreed that the testimony was hearsay. After a brief juryout discussion with counsel, the trial judge decided to admit the

testimony so long as the prosecution "could connect it up" later.

The state justified the evidence as part of the "res gestae." The

trial judge apparently believed the evidence to be admissible as

agent statements under Rule 803 (1.2)(D). 

Neither ground supports the admission of most of the

statements related by Hester. "Res gestae" is an obsolete term

often inaccurately applied to excited utterances. The Tennessee 18

Rules of Evidence contain no "res gestae" exception. Further, 19

Rule 803(1.2)(D), of limited applicability in criminal cases,

applies only when the employees are acting within the scope of

their employment and when the statements are against the interest

of the employees as well as the employer. Since the testimony does

not qualify as either an excited utterance or an admission, it was

inadmissible. Much of the testimony should have been excluded.

4. FAILURE TO OBJECT TO HEARSAY STATEMENTS

Agent McGaughy testified without objection to a statement

identifying appellant as Swartz's boss. Appellant contends, and

the state agrees, that the statement attributed to Swartz was
 The rule provides: 20

The following are not excluded by the hearsay rule:

(D) a statement by an agent or servant

concerning a matter within the scope

of the agency or employment made

during the existence of the

relationship under circumstances

qualifying the statement as one

against the declarant's interest

regardless of declarant's

availability . . . . Tenn. R. Evid.

803 (1.2).

16

introduced to prove that appellant was Swartz's boss, i.e., the

truth of the matter. The trial judge held, however, that the

admission of the hearsay evidence was harmless since there was

ample evidence to show that an employer-employee relationship

existed between Swartz and appellant. 

Here, the state argues that the evidence was an admission

admissible under Rule 803(1.2)(D). Whether Swartz and Ashworth 20

were agents or servants of appellant was a contested issue at

trial. Swartz and Ashworth executed contracts that stated that

they were independent contractors, not employees. Apparently,

appellant did not withhold payroll taxes from the women. The

viability of the admissions exception under these circumstances is

questionable. A timely objection by counsel would have required

the court to exclude this statement which served as a basis for the

state's proof of an essential element.

5. EVIDENCE OF DAVIDSON COUNTY INVESTIGATION

During the months of July through October of 1990, more

than a year prior to the incident in question, the Metropolitan

Police Department began an investigation into prostitution

trafficking in Davidson County. The investigation included the

dating and escort services listed in the yellow pages of the
17

Nashville telephone book. There were approximately 140 individual

telephone listings for these businesses. However, all of these

listings were to businesses operated by eight individuals.

Appellant had thirty-nine listings under separate business names.

She paid the telephone bills for all of these businesses.

Additionally, all of these telephone numbers were answered by an

individual referred to as "a dispatcher" at appellant's place of

business.

On October 11, 1990, officers executed a search warrant

at appellant's place of business in Davidson County. Several

records were confiscated from the business. The dispatcher was in

possession of a "pill." Also, Metropolitan police officers

contacted "various sources throughout Davidson County" and reviewed

"different written complaints sent in by different citizens in

Davidson County."

Trial counsel contested the relevancy of the testimony

regarding these investigations. In the motion for a new trial and

in this court, appellant contends that several portions of the

testimony were not admissible on various grounds. Each of

appellant's grounds will be addressed.

Appellant contends that the testimony regarding the 1990

investigation given by Sergeant Blakley was not relevant to the

offense of October 3, 1991 since it was too remote in time to bear

on the controverted factual issues. The term "relevant evidence"

is defined as "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. As a general rule, relevant
18

evidence is admissible. However, there are exceptions. The

evidence is not admissible if it is barred by the United States

Constitution, the Tennessee Constitution, the Tennessee Rules of

Evidence, or other rules of general application. Tenn. R. Evid.

402. Also, if the probative value of relevant evidence is

substantially outweighed by the danger of unfair prejudice, the

evidence should not be admitted. Tenn. R. Evid. 403. "Relevant

evidence" may also be excluded if the probative value of the

evidence is substantially outweighed by the danger of undue delay,

waste of time, or needless presentation of cumulative evidence.

Tenn. R. Evid. 404.

Basic to the concept of relevance is the requirement that

a lay witness have "firsthand knowledge" about the subject matter

of the witness's testimony. Tenn. R. Evid. 602. In the treatise,

Tennessee Law of Evidence, the authors state:

The personal knowledge rule of Rule

602 provides that . . . a witness is

not competent to testify about facts

unless the witness personally

perceived those facts by use of the

witness's five senses.

Neil P. Cohen, et al., Tennessee Law of Evidence § 602.1 at 2 & 3.

However, there are two exceptions to this rule. The rule does not

apply to (a) the testimony of experts, Tenn. R. Evid. 702., 703;

Adv. Comm. Comments, Tenn. R. Evid. 602, or to (b) admissions made

by a party opponent. Tenn. R. Evid. 803(1.2); Adv. Comm. Comments,

Tenn. R. Evid. 602.

A witness must have the requisite personal knowledge to

testify. Tenn. R. Evid. 602. On this record, it is difficult to

decipher whether Sergeant Blakley had personal knowledge about much

of his testimony. Undoubtedly, some of his testimony came from
19

other officers, from individuals he interviewed, from what he read

in reports, and from what he heard while listening to audio tape

recordings. While ascertaining which is which is difficult,

clearly much of the testimony was hearsay, once, twice, and three

times removed. Neither Sergeant Blakley's participation in the

investigation nor his role as lead investigator permitted him to

testify to facts outside his personal knowledge.

Sergeant Blakley candidly admitted that he never talked

with the dispatcher. Yet he testified to information gleaned from

listening to the taped conversations between the undercover

officers and the dispatcher and from what he read while reviewing

"different written complaints sent in by different citizens in

Davidson County." This testimony was inadmissible.

Despite the fact that his knowledge of the operation of

the escort services was based primarily upon hearsay, Sergeant

Blakley testified as to the operations, the role of the dispatcher,

and the questions asked by the dispatcher. He testified regarding

the lease and purpose of an apartment and visitors to the apartment

despite his lack of personal knowledge.

Defense counsel should have challenged Sergeant Blakley's

testimony because of his lack of personal knowledge. At the least,

counsel should have voir dired the witness to ascertain which, if

any, information was based on personal knowledge and which was

obtained from other sources. Counsel's failure to do so resulted

in the admission of highly prejudicial, largely inadmissible

testimony.

Additionally, although Sergeant Blakley was not qualified

as an expert witness, he was permitted to express his opinion
20

regarding the nature of the escort service business. The following

colloquy took place during Blakley's direct examination:

Q. During your investigation did you

learn how these operations [escort

services] worked?

A. Yes, sir. During the course of the

operations or this investigation in

the preliminary stages we did

contact various sources throughout

Davidson County and also were

reviewing different written

complaints sent in by different

citizens in Davidson County. 

In reading these reports and

checking and verifying this

information, it was obvious to us

that most if not all of these listed

escort services were involved in

prostitution.

Q. How did you arrive at that?

A. Okay. The main point of it was --

is that we had several irate wives

who were calling and wanting to know

what different businesses were, and

when they called them to check on

their credit card receipts were

given vague answers and hung up on.

We also talked to various

individuals who at one time or

another had worked for some of these

escort services as escorts, and they

had explained to us the terminology

and the methodology of the escort

service business.

MR. GALBREATH: I'm going to object to 

the hearsay there, Your Honor.

THE COURT: Sustain the objection.

Opinion testimony is generally limited to witnesses who

qualify as experts in the subject matter of their respective

testimony. Tenn. R. Evid. 702. On occasion, lay witnesses may

express opinions when certain prerequisites are established. Tenn.

R. Evid. 701. Lay opinion, however, is fairly circumscribed. As

the Advisory Commission to the Tennessee Rules of Evidence

commented:
21

The rule rather specifically

circumscribes the area where a lay

witness can testify to opinions as

opposed to facts. The Commission

believed that the instances would be

rare where a witness could not convey thoughts to the jury by

enumerating facts, leaving it to the jurors to draw inferences.

Add. Comm'n Comments, Tenn. R. Evid. 701.

Before a lay witness may express an opinion or inference,

the party presenting the witness must establish:

a) the witness has "personal knowledge" of the facts or

subject matter that forms the basis for the opinion or inference,

Tenn. R. Evid. 602;

b) the opinion or inference to be expressed by the

witness does not require the knowledge or skills of an expert,

Tenn. R. Evid. 701(a)(1);

c) the witness cannot readily and with equal accuracy

relate what has been perceived without expressing it in the form of

an opinion or inference, Tenn. R. Evid. 701(a)(2); and

d) the opinion or inference to be expressed by the

witness will not mislead the trier of fact to the prejudice of the

adverse party, Tenn. R. Evid. 701(a)(3).

In this case, the state did not attempt to have Sergeant

Blakley qualified as an expert in the field of prostitution. Based

on the testimony elicited from him, it is doubtful that he

possessed the training, knowledge, education, or experience to

qualify as an expert. Consequently, Sergeant Blakley should not

have been permitted to express the opinion that "most if not all of

these listed escort services were involved in prostitution" unless

that opinion was proper for expression by a lay witness and unless

the state established the prerequisites for lay opinion. We find

that neither condition required for the admission of lay testimony
22

was present in this case. Trial counsel again failed to object or

to raise the absence of the required conditions, thereby allowing

the admission of prejudicial, inadmissible, crucial evidence. 

In addition to inappropriate hearsay and opinion

testimony, Sergeant Blakley testified to alleged criminal conduct

for which appellant was never charged. Sergeant Blakley was asked

to detail the sting operations his department conducted. He

testified: 

A. We ran two separate operations in

August and September of 1990. These

operations were done to further our

probable cause to issue search

warrants, which we subsequently

issued. At that time we did call

these numbers listed to the R & C

Enterprises, and at that time did

talk with [the] dispatchers. 

And I believe in September of 1990

our officers asked for show dates,

and the dispatcher at 918 Shelby

when we asked for this service

directly, she said that she had two

girls --

MR. GALBREATH: Objection again, Your 

Honor, hearsay.

THE COURT: This is when?

THE WITNESS: September of 1990.

. . .

THE COURT: Overrule the objection.

Q. Go ahead, Sergeant.

A. The undercover officers were advised

that two girls were available but

they couldn't get them both

together. Subsequently, later -- a

few minutes later we called back to

another number in that list of phone

numbers, and at that time we talked

to the same female dispatcher or at

least the voice appeared to be the

same.
23

Our undercover asked for, again, a

show date, two girls. At that time

the dispatcher told them you have

already called one time and we're

trying to get you two girls; we just

can't get them together right now.

And he said well, I just thought I

called another number. And she said

no, we have all thirty-nine lines

running in here.

Q. And this was to 918 Shelby Avenue --

A. Yes, sir.

Q. -- -- dispatcher, owned and operated

by this defendant?

A. Yes, sir.

Q. Go ahead.

A. Then I believe it was on the 9th of

October, 1990, we again called

several of the listed numbers to R &

C Enterprises. At that time our

undercover officers asked for a

sexual preference of half and half.

At that time the dispatcher linked

our undercover officer with a female

named Vanessa. At that time the

officer advised Vanessa to come to

the motel. She came to the motel.

She quoted what she would perform

and the amount of money.

At that time the undercover officer

under our direction told the girl

that he did not want to go through

with it, he was married and before

any money changed hands or anything

like that we dismissed the girl.

She left. At that time surveillance

officers who were placed outside

this location followed Vanessa back

to 308 Plus Park Boulevard.

Q. Was it your department's plan to not

go through with the sexual act as it

turned out? Was that what you all

were planning on doing?

A. That's correct. All we wanted was

to find out if in fact these girls

were offering sexual favors and if

they were charging money for this.

Q. And did these girls offer sexual favors?

A. Yes, sir, they did.
24

 

This evidence, elicited during Sergeant Blakley direct

examination, clearly violated Rule 404(b), which provides:

Other Crimes, Wrongs, or Acts.-- Evidence of

other crimes, wrongs, or acts is not

admissible to prove the character of a person

in order to show action in conformity with the

character trait. It may, however, be

admissible for other purposes. The conditions

which must be satisfied before allowing such

evidence are:

(1) The court upon request must hold a

hearing outside the jury's presence;

(2) The court must determine that a

material issue exists other than

conduct conforming with a character

trait and must upon request state on

the record the material issue, the

ruling, and the reasons for

admitting the evidence; and

(3) The court must exclude the evidence

if its probative value is outweighed

by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

Through discovery, defense counsel should have known that

this evidence was available to the state and should have requested

a jury-out hearing to determine its admissibility. Even if the

state has asserted that some legitimate purpose for the

introduction of the other crimes evidence, the court would still be

required to balance the probativeness with the danger of unfair

prejudice arising from admission. Given the nature and timing of

this other crimes evidence, its admissibility is suspect.

The record establishes that the representation of trial

counsel was deficient in the numerous respects that we have
 Appellant also argues that trial counsel's failure to request 21

a jury instruction on the possible sentence in this case

constituted ineffective assistance of counsel. The flaw in this

argument is that the only offense submitted to the jury was the

promoting of prostitution. Consequently, the only possible

punishment was the punishment prescribed for this particular

offense. An instruction on the possible punishment for an offense

is only helpful when the evidence adduced at trial supports an

instruction on one or more lesser included offenses. If the jury

finds that the accused is guilty, it may also feel that the harsh

punishment for the principal offense is inappropriate. Thus, the

jury, having been advised of the punishment for the lesser included

offenses, may return a verdict of guilt for a lesser included

offense because it feels the punishment is more appropriate to

punish the criminal conduct. Conversely, if the trial court finds,

as here, that the principal offense is the only crime supported by

the record, an instruction on the possible sentence for the offense

will not benefit the accused. Of course, this court is not

unmindful of the potential argument that a jury may acquit an

accused if it feels the only punishment for the offense is too

harsh for the accused's criminal conduct. Such a scenario is

highly unlikely. The failure of trial counsel to make such a

request did not prejudice appellant in this case.

25

detailed. Counsel's services fall far below "the range of 21

competence demanded of attorneys in criminal cases." State v.

Melson, 772 S.W.2d 417, 419 (Tenn. 1989). Therefore, appellant has

satisfied the first prong of the Strickland test. To establish the

prejudice prong, appellant must demonstrate that "there [was] a

reasonable probability that, but for counsel's unprofessional

errors, the result of the [trial] would have been different."

Strickland v. Washington, 466 U.S. 694 (1984). A "reasonable

probability" is defined as "a probability sufficient to undermine

confidence in the outcome." Id.

The sheer volume of inadmissible, prejudicial evidence

introduced at this trial is more than sufficient to undermine our

confidence in the outcome. Indeed, we have difficulty imagining

this trial without all the inadmissible evidence. Virtually all of

Sergeant Blakley's testimony was based on hearsay. At best, its

relevance was marginal. His opinions should have been excluded.

Tenn. R. Evid. 701. The evidence of other crimes occurring more

than a year earlier should have been subjected to Rule 404's
26

precautionary tests. Agent McGaughy's testimony regarding Swartz's

identification of appellant as "her boss" was hearsay. Swartz' s

and Ashworth's guilty pleas were irrelevant and highly prejudicial.

The description of these women's activities with Jimmy Hester, but

for the inadmissible hearsay which connected them to appellant, was

only tangentially relevant. The detailed history of prostitution

in Brentwood was not connected to appellant and should not have

been admitted. Yet counsel neglected to challenge most all of this

evidence.

When this unchallenged inadmissible evidence is compared

with the remaining evidence, it becomes apparent that counsel's

deficient performance prejudiced appellant. Absent the

inadmissible evidence, the proof in appellant's case would have

been highly circumstantial and could easily have yielded an

acquittal. 

Therefore, we conclude that counsel's numerous

deficiencies affected the outcome of this trial. This case tried

with competent counsel would not have resembled the case before us.

Counsel's ineffectiveness deprived appellant of a fair trial. 

Catherine Ward's conviction is reversed. The case is

remanded to the trial court for a new trial.

___________________________________

Penny J. White, Judge

CONCUR:
27

(See Separate Dissenting Opinion) 

Joe B. Jones, Judge

___________________________________

Gary R. Wade, Judge