# FILED
February 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9701-CR-00011 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. THOMAS H. SHRIVER, LARRY A

. HOLBROOKS, ) JUDGE ) Appellant. ) (Possession of cocaine wi th intent to sell; evading ar

rest)

FOR THE APPE LLANT: FOR THE APPELLEE:
DWIGHT E. SCOTT JOHN KNOX WALKUP 4024 Colorado Ave. Attorney General & Repor ter Nashville, TN 37209 LISA A. NAYLOR Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JOHN ZIMMERMANN Asst. District Attor

ney General Washington Square, Suite 500 222 Second Ave., North Nashville, TN 37201

OPINION FILED:____________________
AFFIRMED IN PART; REVERSED AND DISMISSED IN PART JOHN H. PEAY, Judge2 O P I N I O N

The defendant was indicted in Ap ril 1995 o n charges of possession w ith intentto sell more than twenty-six grams of cocaine, criminal tre spass, an d evading arrest. After a trial, a jury convicted him of the possessi on charge and the evading arrest charge. The defendant wassentenced to eight years in the Tennessee Department of Correction for the possession convic tion an d w as sentenced to a concurrent sentence of eleven months and twenty -nine days for

the evading arrest c

onviction. In this appeal
as of right, the defenda nt contends that the evidence was i nsufficient to convict him of either offense and that the tri al court erred when it refused to grant his motion t o suppress the physical evidence in the case. After a review of the record and applicable law, we find that the motion to dismi ss was properly denied and tha t the evidence sufficiently supported his convicti on for possession with intent to sell more than twenty-six grams of cocaine. However, we reverse and di smiss the defendant’s conviction for evading arrest.

The charges against the defendant stemmed from an incid ent on November 30, 1994, at the JamesCasey Housin g Project in East Nashv ille. Metro Police O

fficer Damion Huggins testified that the police department had receiv ed several calls that day
r eporting drug activity in the area near Kirkpatrick Elementary School. As a result o f these calls, Office r Huggins organized sever al officers to investiga te the a rea. Officer Huggins an d another officer decided to approach the area on foot so as to avoid early de tection. Other officers continued to patrol the area from their patrol ca rs. Office r Huggins testified that as he approached a front porch area

of one of the housing units, he observed several individuals i nvol ved in what appeared to hav e been a dice game. As he approached closer, those involved in the game saw him and began to run.3 The officer then began to pursue the defendant. He testified that as he ran afterthe defendant, he saw the defendant reach into his front area as if he were trying to grab something. As the defendant continued to run and continued to tug at his front area, Officer Huggins saw a plastic bag sticki ng out of the defendant ’s p ocket. Eventual ly, the defendant ran behind a nearby house and Officer H ugginsran around the front of the house hoping to cut off the defendant’s escape. The officer testified that he had next seen the defendant crouched down behind a white picket fence near the front of the house. He further testified that the defendant had been doing something with his hands. At this point, Officer Hug gins ran toward the ba ck of the house in order to stop the defendant. Wh en he appro ached t he defendant, he saw that his front poc ket was now empty and that the lini ng was hanging out.

Officer Huggins testified that he then dete rmined th at the defendant was not
a resident of the James Casey Housing Project and

thus he arrested him for trespa ssing. The officer then returned to the fenced area where the defendant had been crouched. There he found a large plastic bag with fifty -one smaller bags inside, each of which contained a rock of crackcocaine. Officer Huggin s then read the defendant his Miranda rights, after which the defendant said, “ You didn’t find [the drugs] on me; so, y ou c an’t charge me with them.”

Officer Huggins testified that three men, including the defendant,had run f rom the porch area when he had approached the g roup. However, he s tated that the defendant had been the only person to r un into the fenced area where the cocaine was eventuallyretrieved. He further tes ti fied that an elderly woman lived in the house that was surrounded by the fence.4 Metro Police Officer William A. Stiltz tes tified that he had been one of the officers who had remained in the patrol cars. He said that he spot ted one person running toward his car. As he apprehended thi s person, he spotted the defendant going around the backof a nearby house. He further saw the defendant crouching down at the fenced
area at the corner of the house. Officer Stiltz testified that he h ad then yelled to Officer Huggins that the defendant w as hiding behind the fence.

The State then presented evidence to establish the chain of custody for the cocaine. Terri McAbe e, of th e Metro property and ev idence section, testified that the cocaine had been sealed and put in storage on Nov ember 30, 1994. She further testified that Officer

Joy Moore had possessi on of the evidence on December 1, 1994. McAbee stated that the eviden ce had been delivered to the TBI lab on December 8, 1994, and had been returned to her office on Febr uary 22, 1995.

Donna White Flowers, a forensic chemist w ith the TBI, confirmed that her office received the evidence in a sealed plastic bag on December 8, 1994. She testified that she had begun her analysi s on January 24, 1995, and had completed it on February 3, 1995. She determined that the rock -like substances wer

e coca ine. She further testi fied that she had received one l arge plastic bag w ith fifty-one smaller bags eac h containing one rock. Two other rocks were also loose in the large bag . Flowers testified that she weighed the fifty-on e rocks within their bags,then subtracted the weig ht of the bags to reach a total of 27.4 grams of cocaine. The other tw o rocks weighed

2.1 grams, for a total amount of 29.5 grams of cocain e.

On cross-examination, Flowers stated that she did not test each rock individuallyto determine if it were c ocaine. She testi fied that the policy of the TBI was5

to only test the square r oot of the number ofsamples, which in this case was eight. Thus, she tested eight rocks and d etermined all eight to be c ocaine. She then performed a visual test and determined that all of the samples looked the s ame.
The defendant presented no evidence and a jury s ubsequently convic ted him of possession with intent to sell more than twenty -six grams of cocaine and evading arrest. The defendant now appeals and makes several challenges

to the sufficiency of the evidence. In addition, he challenges the trial c our t’s refusal to grant his motion to suppress the cocaine found at the scene of his arr est. We choose to address the motion to suppress issue first.

The defendant argues that he was illegally

pursued and stopped by Officer Huggins. He alleges that the officer d id not have the requisite r easonable suspicion to stop him. After a hearing on th is subject, the trial judge denied the defendant’s motion to suppress. Thefindings of a trial judge on factual issues in a suppression hearing will be upheld unless the evidence preponderatesotherwise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996).

In this case, the trial cou rt ruled from the bench that the defendant’s motion lacked merit. The court found that Officer Huggi ns had been told to investig ate an area in the James Casey Housing Project for drug activity . When Officer Huggins arriv ed on the scene, he found a dice game, whi ch the trial judge noted, “in itself is illegal activ ity.” The trial judge further found that when the participants i n the game fled the area, “that [gave] any law enforcement office r r eason to suspect -- to suspect that a crime [was] being committed. People don’ t run from the police unless they are -- they’re doin g somethi ng they don’t want the pol ice to know about.” How ever, he concluded t hat th e1 Because the State had conceded that the officer did not hav

e the reasonabl e suspicion neces sary to justify sto pping H odari D., the Court ha d no oc casion to addres s that issu e. Hodari D. , 499 U.S. at 62 3 n.1.

2 Our research produced onl y one published case in whi ch Hodari D. was cited. In State v. Greene , 929 S.W.2d 376 (Tenn. Crim. App. 1995), a panel of this Cour

t cite d it for

the proposi tion t hat there must be eit her a physi cal appli cation of force by t he officer or a submission t

o the offi cer's show of authorit y before a “

seizure” occurs. In that case, t he defendant argue d that he had been “seized” when a police of

ficer asked whet her he had been driving the au tomobile i n question. No police chase was 6 case need n ot be ana lyzed under a probable cause or reasonable suspicion theory because the defendant had not actually been se ized or arr ested when the officer was merely in pursuit. In reaching this decision, the trial judge reli ed on the ca se of California v. Hodari D. , 499 U.S. 621 (1991).

The facts of Hodari D. are quite similar to the facts in the case before this Court. In that

case, police of ficers were patro lling a high crime area when they noticed several pe op le

ga th er ed ar ou nd a c

ar . Wh en the police officers approached, the individuals, including Hodari D. , scattered and began to run. As Ho dari D. was running, the officer shouted for him to stop. The officer noticed that while running, Hodari D. had removed something like a small r ock from his pocket and had throw n it o n the grou nd. Eventual ly, the police officer tackled Hodar i D. and searched and handcuffed him. The officer then located thediscarded rock and determined that it was cocaine. Before trial, Hodari D. filed a motion to suppress a ll evidence. The case ev entu al ly reached the SupremeCourt, where the Cour t addressed the narrow issue of whether the officer’s pursuit of Hodari D. constituted a “ seizure” as defined wi

thin the Fourth Amendment. 1 The Court determined that it did not, thus, the evidence was not fruit of an unlawful seizure and could be used to prosecute Hodari D.

We see little difference between the c ase now before us and Hodari D. While we found no T ennesse e cases specifi cally embraci ng the l ogic of Hodari D. , we found none r ejecting it. 2 Although we have fail ed to find any guidance from our ow ninvolved. 7

SupremeCourt, we have deter mined to follow the rule announc ed by the United States SupremeCourt in Hodari D . We conclude that t he pursuit o f the defendant was not a seizure, and thus the plastic bag of ro ck cocaine found by Officer Hug gins was not fruit of an illegal seizur

e. Rather, the bag had been abandoned by the defendant and lawfully recovered by the officer. State v. Brenda Hill , No. 274, Bradley County (Tenn. Crim. App. filed August 7, 199 0, at Nashvill e); see also Abel v. United States , 362 U.S. 217, 241 (19 60). Therefore, we conclude that the defendant’s motion to suppress w as properl y denied by the trial cour t.

As his remainin g i ssues, the defendant attacks the sufficien cy of the evidence that convicted him of possess ion with intent to sell cocaine and evading

arrest. Specifi cally, the defendant claims that the State faile d to establish a proper chai n of custody for the cocaine, that the evi dence was insufficient to prov e the amount ofcocaine found, and that the evidence was insufficient that the defendant had ever possessed the cocaine.

We will first address the chain of cust ody issue. It is w

ell-establishedthat
as a condition precedent to the int roduction of tangible 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 (Te nn. Crim. App. 1982). Ho wever , the failure to call all o f the witnesses

who han d led the evidence does not neces sarily preclude it

s admission into evidence. See State v. Johnson , 673 S.W.2d 877, 88 1 (Tenn. Crim. App. 1984). Wh ile the State is not

required to

establish fac ts which exclude every po ssibility of tamp ering, the circumstances established must reasonably assure the identity of the ev idence and its inte gri ty. State v. Ferguson , 741 S.W.2d 125, 12 7 (Tenn. Crim. App. 1987). This8

issue add resses itself to the sound discretion of the trial court, and the cou rt’s determination will not be disturbed in the absence of a clearly mistaken exercise of such discretion. State v. Beech , 744 S.W.2d 585, 58 7 (Tenn. Crim. App. 1987).

The defendant argue s that th e State failed to present an adequate chain of custody because no one testified as to the whereabouts of the evidence from the time OfficerMoore had it on December 1, 199 4, to the time it arriv

ed at the TBI l ab o n December

8, 1994. Terri McAbee, w ho works in the Metro property section, testified that Officer Joy M oore had be en in possession of the evidence on December 1. However, the State informed the court that Officer M oore was unable to testify due to health
reasons. Instead, Lieutenant Bill Reese testified as to the normal policies follow ed by the property section. He testified that nor mal procedures call for ev idence to be turned over to Officer Moore who

is in charge of the drug vault. If the drugs need to be transferred anywhere, such as the TBI lab, Reese testified that Moore would transport the evidence in a sealed co ndition. H e further testified that evidenc e is transported to the TBI on a weekly basis. On cross-examination, Reese st ated that it is not standard policy for evidence to be taken tothe TBI lab a week after an officer r emoved it from the property
room.
First, we note that McAbee and Huggins identified the cocaine as th e evidence they initia lly received. The cocaine was packaged in such a manner to make it distinctive from other

drug evidence being held by the proper ty section. Thus, the real question involves the integ rity of the evidence, not the ident ifi cation. The defendant maintains that the evidence was u naccounted for for as much a s a w eek after being signed ou t by Officer Moore. How ever, it is not at all

clear from the record that M oor e actually removed the evidence. The following is from the di rect examination of McAbee:9 Q:

. . . [W]hen were the drugs in Exhibit Six for identification given to y

ou at the evi dence room? A: This was receiv

ed on November 30, ‘94. Q: Okay. When is the next time the drugs l eft the property and evidence room and why did they leave, accordi ng to the record? A: Ummm . . . let’s see. When it leav es the proper

ty room, it goes to the lab -- Is that -- is that what you’re talking about

? Q: Yes. A: It is -- it goes to the lab -- uh -- the -- Officer Moore who receives and enters it

in and Sergeant Sage. And, this was on -- uh -- let’s see. Officer Moore has i t on 12-1-94 and, then, she takes it to the lab. Q: When does it go to the lab? A: It goes to the lab --

uh -- 12-8-94. Q: Who carried the drugs to the lab on 12- 8-94? A: Officer Joy Moore. Q: And, who

is she as r

elates to the

evidence r

oom? A: She is the o fficer that logs in the drugs and -- uh -- properlystores them in our vault and takes them to the lab.
From the above, it is not at all apparent that Officer Moore actually removed the evidence from the property room. Rather, we infer, as did the tri al court, that the drugs r emained under “lock and key” until

the time that they were delivered to the TBI lab. Addition ally, McAbee testified that the evidence w as sealed and Flowers t estified that she r

ec eived the evidence in a sealed condi tion. We conclude thatthe circumstances established by the State reasonably assur ed the integrity

and identity

of the evidence. Ferguson , 741 S.W.2d at 127 (Tenn. Crim. App. 1987). We find no abuse of discretion by the trial court on this issue.

The defendant nex t claims that the evidence was

insufficient to prove that1 0

the cocaine weighed in ex cess of twenty-six

grams. He claims that F lowers, who performed the analysis at the TBI lab , did no t account f or the weight of the bags when she stated th e weigh t of the evidence. To the contrar y, Flowers testi

fied that the total cocaine weight of the fifty-one bagged rocks and the two loose ones was 29.5 grams. She specifically testified that that number did not include the bag weight. She e xplained that she weighed the bagged r ocks as a group in their

individual bags. She then weighed
one of the small bags, multipli ed the weight by fifty -one, and subtracted that amount from the total weight of the bags plus the cocaine to arrive at the weigh t of the c ocaine o nly. We see nothing to suggest that this evidence is not entire lysufficient to prove that the cocaine weighed in ex

cess of twenty-six

grams. This issue is without merit.

Th e defendant next contends that the ev idence was insufficient to p rov e that the cocaine found by Officer Hug gins had actually been i n the de fe ndant’s possession. The defendant claims that his mere proximity to the area where the drugs
were found is insufficient to support his conviction. He arg ues that the drugs were found in a “high drug traffick

ing area” and that “drugs are discarded every where in the area.”

A defendant

challe nging the suffi ciency of the p roof has the burden of illustratingto this Court why the evidence is insufficient to support the ve rdict returned by the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lackof sufficientevidence unl ess the facts contained in the record and any inferences which maybe drawn from the facts are ins ufficient, as a matter of law, for a rati onal trier of fact to find the defendant guilty bey ond a reasonable doubt. St ate v . Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

When an accused challenges the sufficiency of the convic ting evidence , we1 1

must review the evi dence in the light most favor able to the prosecution i n det ermining whether “ any rational trier of fact could have found the essential elem ents o f the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluat e the evidence and are req uired to afford the State the strongest leg itimate view of the proof contained in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

From our review of the rec ord, we find ample evidence to support that the drugs had been in the defendant’s possession. Officer H ugginstestified that as he had been chasing the defendant, he hadseen the defendantattempt to pull a plastic bag from his front pocket. He further testified that the defendant had been the only per son who ran into the fenced area. Officer Huggins and Officer Stiltz testified that they had seen the defendant crouched in the corner of the f enced area where the drugs were e ventually found. Officer Huggins further t estified that he had seen the defendant doing something with his hands while he ha d been cro uched by the fence. We find that it is entirely
r easonable for the jury to have co ncluded that the evidence dis covered by Office r Huggins had been in the defendant’ s possession. This issue i s without merit.

As the defendant’s final issue, he contend s that the evidence was insufficient to convict him o f evading arrest. He argues that he did not know the officer intended to arrest him or that he was under arrest. Tennessee Code Annotated § 39-16-603(a)(1) prov ides that: [I]t is unlaw

ful for any person to intentionall y flee by any means of locomotion from anyone the person knows tobe a law enforcement officer if the person: (A ) Knows the officer is attemptin g to arrest t h e person; or1 2 (B) Has been arrested. Obviously, the defendan t had not been arrested when he began running from Officer Huggins. The issue is whether the officer was attempting to arrest the defendant and if so, whether

the defendant knew that. From the evidence and from the initial discuss ion about the police pursuit, w e cannot conclude that the officer w as attempting to arrest the defendant. Officer Huggins’ susp icion was aroused w hen the de fend ant and his companions began fleeing the front porch area and thus he ga ve chase. However, we cannot conclude that the officer was attempting to arrest the defendant because the officer lacked probab l e cause for an arrest. In fact, w hen the officer did detain the defendant, the officer had to ask a few q uestions todetermine whether he could arrest the defendant for trespa ssing in the housing community. While the of ficer was merely in pursuit, he could not have been attempting to arrest the defendant, therefore, the defendant’s conviction for ev ading arrest cannot stand.

In conclusion, we find that th e defendant’s motion to dismiss was properly d enied and that the evidence sufficientl y supported his convi ction for possession wit h intentto sell more than twenty-six grams of cocaine. However, we reverse and dismiss the defendant’s conviction for ev ading arrest.

_______________ ___________

______ _ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge1 3

______________________________ DAVID H. WELLES, Judge