# FILED

March 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE SEPTEMBER 1997 SESSION

STATE OF TENNESSEE ) ) NO. 03C01-9703-CR-00085 Appellee, ) ) CLAIBORNE C

OUNTY v. ) ) HON. LEE ASBURY CHARLES E. LAKINS ) ) (Poss. Cocaine w/ Int. to Sell) Appellant ) )

For the Appellant For the Appellee Michael G. Hatmaker John Knox Walkup 571 Main Street Attorney General & Repor ter P.O. Drawer 417 Jacksboro, TN. 37757 Timothy F. Behan Assistant Attorney Gener al 2nd Floor Cordell Hull

Building 425 Fifth Avenue North Nashville, TN. 37243-0493 William Paul Phillips District Attorney General E. Shayne Sexton Assistant District A

ttorney General P.O. Box 323 Jacksboro, TN. 37757 Michael O. Ripley Assistant District A

ttorney General P.O. Box 323 Jacksboro, TN. 37757

OPINION FILED:_____________________ AFFIRMED WILLIAM M. BARKER, JUDGE2 OPINION The appellant, Charles E. Laki ns, appeals as of right the c onvictions and sentences he received in the Criminal Court of Clai borne County. After a tri al by jury, the appellant was convi cted of possession with intent to sell a Schedule II cont rolled substance, to wit: cocaine, in an amount in excess of twenty six (26) grams, a Class B felony; and possession wi th intent to deliver dr

ug paraphernalia, to wit: inosital, a Class E felony. The trial court sentenced the appellant as a Range I stand ard offender to ten (10) years for poss ession of cocaine with int ent to sell and to one (1) year for possession of drug paraphernalia with intent to deliver. The sentences were ordered to run concurrentl y for a total effective sentenc e of ten (10) years in the Tennessee Department of Correction. On appeal, the appellant contends th at: (1) The trial court erred by failing to suppress physical evidence taken from appellant’s residence and inculp atory statements made by the appellant on the date of arrest; (2) The tri al court erred by excluding witnes

s testimony and audio taped ev idence pertaining to the pr e-trial statements of Walter Ingle; (3) The trial c ourt erred by restri cting the examination of Walter Ingle in the presence of th e jury; and (4) The appellant was convicted by a jury that was comprised in violation of the Tennessee and United Sta tes Constitutions. After a review of the rec ord, we find no revers ible error and affirm the judg ment of the trial court. FACTUAL BA CKGROUND The events preceding the appellant’s arrest on September 16 , 1994, are undisputed. Chief Deputy Kel ly Anders and Lieutenant Ben E vans of the Claiborne County Sheriff’s Department w ent to the appellant’s reside nce during the late afternoon of that day to assist one C harles LeFevers in the recovery of a red pick-up truck. Mr. LeFevers claimed that his red truck had been taken from him in Kentu cky by one Sillus Lankford and thereafter had been delivered to the appellant’s residence1 Deputy Anders t estifi ed that Mr. LeFevers’ t ruck had not been repor ted stol en and that t he occupants of the

red truck di d not viol ate any t raffic l aws. Therefore, Anders clai med that he did not have grounds to condu ct a traf fic stop. 3 as collateral for a cocaine deal. Mr. LeFevers had driven by the appellant’s residence earlier in the day and had seen the truck parked in the driveway. He r equested assistance from the Claiborne County Sheriff’s Department bec ause he had observed several men armed with guns on appellant’s proper ty. Deputy Anders and Lieutenant Ev ans drove separately from Mr. LeFevers and followed him out to the appellant ’s home. Within a few miles of appellant’s r esidence, Deputy Anders drove beh ind and eventually pass ed a red pick-up truck that was occupied by two men. H e testified that he drove past the truck and continued on to the appellant’s home because he was not sure if the truck was the vehicle in question. 1 Upon arrival at the appellant’s residence, Anders overheard Mr. LeFevers tell Lieutenant Evans that the red truck they had pass ed was in fact the missing truck. Thereafter, Anders and Lieutenant Ev ans entered upon the appellant’s pr operty to question appellant about the truck. Deputy Anders and Lieutenant Ev ans left their vehicle par ked in front of appellant’s house and walk ed up the driveway and sidewalk leading to the front porch. With their guns still fastened in their holsters, the two men cl imbed the stairs onto the porch and walked across to the front door. Deputy Ander s testified that the front door was standing wide open during their approach. Looking in, Anders immediately observed the appellant sit ting on a couch with a plastic bag in one hand and a s poon in the other. He noticed that the plastic bag contained a white powder-like substance and he noticed a digital sc ale and beer can laying in a chair beside the appell ant. Anders, thereafter, drew hi s gun and entered the room to ar rest the appellant. After Deputy Anders and Lieutenant Evans secured the room , they found in open view a plastic bag and beer can containing a white powder-li ke substance and a bottle of inosital sitting

on a television set. The ap pellant spoke first and admitted that2 Before his arres t, the appe llant told Dep uty Ander s: I can’t believe after al l the y

ears I do something so stupid - Get caught in the act of selli ng cocaine - Si t right in the open a nd do it. It’ s nobody’s f ault but my own - Get cau ght w ith the s___ in m y hand . You’r e the luck iest p erso n I’ve e ver k now n jus t walk right i n on me cutting t he s___. I can’ t beli eve this hap pened. I can’t deny t his, caught red han ded, right in th e act. 4 he was caught in the act of “cutting” cocaine for r esale. 2 He consented to a police search of his residence w hich revealed over t

wenty six (26)

grams of cocaine, the bottle of inosital, the digi tal scale, a shotgun, and se veral plastic bags

. Based upon that evidence, the appel lant was charged and co nvicted of possessing cocaine and dr ug paraphernalia with intent to sell. On appeal, the appellant challenges both his convictions and sentences. ANAL YSIS The appellant first contends that the trial court erred in f ailing to suppress physical evidence obtained during the police entry and search of his residence. He further contends that his incriminating statements ma de before the arrest were inadmissible as fruit of the unlaw ful search and seizure. This issue is without merit. At the suppression hearing , the appellant argued that D eputy Anders and Lieutenant Evans acted unlaw fully when they came upon his property and approac hed his front door without a w arrant. He contended that any evidence obtained during and subsequent to the illeg al entry, even if in pl ain view, was inadmissible at trial. The trial court found that the officers lawfully entered appell ant’s property and used the walkway to appr

oach the front door. The court, ther efore, ruled that the cocaine and paraphernalia evidence obs erved in the officers’ plai n view was properly seized and admissible at trial. In addition, the trial court ruled that the appellant’s uns olicited, inculpatory statements w ere also admissible. We find no evidence to disturb the ruling of the trial court. The recor d supports a finding that Deputy Anders and Lieutenant Evans lawfully entered the app ellant’s property solely to question him about Mr. LeFever’s missing truck. In conducting their3 See State v. Ha rris , 919 S.W .2d 619, 623-24 (Tenn . Crim. App. 1995); State v. Ma rcus Ellis , No. 01C 01-900 1-CR -00021 (Tenn . Crim. A pp. at Na shville, Dec . 12, 1990 ). 5 official police business, the officer s used the open pathways from the road to the front door and made no attempts to deviate from that course or to peer into appellant’s windows. Moreover, the facts demonstrate that Deputy Anders inadvertently discovered the appellant’ s possession of cocaine after he appr oached the open doorway. When pursuing legitimate business objectives, police officers h ave a right to use the sidewalks, pathw ays, or similar pass

ageways leading from a public roadway to the front doo r of a dwelling. 3 That area represents an impli ed invitation to the gener al public and is not withi n the zone of privacy protected by either the F ourth Amendment or our state constitution. See State v. Harris , 919 S.W.2d at 623-24. Therefore, Deputy Anders and Lieutenant Ev ans were lawfully

present on appellant’s proper ty when they observed the white powder-li ke substance and the drug paraphernalia. Moreover, the appellant concedes that the cocaine and the drug paraphernalia were in plain vie

w when the officers stepped o nto his front porch. The front door w as standing wide open w

hen the appellant was observ ed in the act of preparing coc aine for resale. We conclude that there was no illegal entry or search which woul d warrant suppression of the physical evidence obtained at appellant’s residence. Furthermor e, having found the officers’ conduct to be valid under the Fourth Amendment and Article I, section 7 of the Tennessee Constit ution, we conclude that the appellant’s unsolicited statements made before his arrest w ere also admissible at tr ial. II. The appellant next contends that the trial court erred in excluding witness testimony and audio taped evi dence pertaining to the pre- trial statements of Walter Ingle. He argues that Mr. Ingle should hav e been declared “unavailabl e” after he invoked his Fifth Amendment pri vilege and that his st

atements should have been4 The state me nts in ques tion w ere re cord ed du ring a conv ersa tion b etwe en M r. Ingle and h is brother, Lonnie DeWayne Ingle. The recording was made a few day s after t he appellant

’s arrest when Lonnie Ingl e visit

ed Walter Ingle at

the lat ter’s home to el icit

informati on concerning t he alleged cocaine “frame up.”

5 Rule 804(a)(1)provides t hat a declar ant witn ess is “unavai lable” when he “is exempted by rulingof the court

on the grounds of

privi lege from test ifyi ng concerning t he subject matter of the declara nt’s statem ent.” 6 admitted as statements against i nterest under Rule 804(b)( 3) of the Tennessee Rules of Evidence. Although we find that Mr.Ingle was “unavai lable” after he invoked hi s Fifth Amendment privilege, we conclude that any error concerning the exclusion of his statements was harmless bey ond a reasonable doubt. At trial, the appellant cal led Walter Ingle to testify concerni ng Ingle’s pre-tri al statements in which he all uded to planting cocaine at th e appellant’s residence. The statements were surrepti tiously recorded by

Mr. Ingle’s brother

before appellant’s trial and were heard on the record at a jur y-out hearing. 4 On the tape, Mr. Ingle made statements suggesting that he had left cocaine at appellan t’s home the night before the arrest and that he had planned to contact the police concerning appellant’s unlawful possession. Mr. Ingle, however, indicated on tape that the cocaine was not his and that he never call ed the police. The trial court reviewed the statements in question and determined that Mr. Ingle would invoke his Fifth Amendment privilege if called to testify. The trial court thereafter ruled that Mr. Ing le was not “unavail able” for the purposes of Rule 804 of the Tennessee Rules of Evidence and that any evidence concer ning the recorded statements was inadmissibl e hearsay. We find that Mr. Ingle should have bee n declared “unavailable” under Rule 804(a)(1) of the Tennessee Rules of Evidence. 5 Having invoked his privilege under the Fifth Amendment, Mr. Ingle r eceived an exemption from test ifying concerning t he content of his recorded statements. Nevertheless, althou gh “unavailable,” his7

statements in their entirety were not admissible as statements against interest. Rule 804(b)( 3) prov ides tha t a state ment is a

dmissib le if: at the time of its making [the s tatement was] so far contrar y to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil

or criminal liabili

ty or to render inv

alid a claim by the declarant against another, that a reasonable person in the declarant’s position would not hav

e made the statement unless believ ing it to be true. We have carefully reviewed M r. Ingles’ statements cont ained in the tape recording and find that many of them do not qualify as statem ents against interest under Rule 804(b)(3). Al though Mr. Ingle sug gested that he left cocaine at the appellant’s home, there are inc onsistencies as to wheth er Mr. Ingle left the coc aine by accident or whether he i ntended to plant evidence. M oreover, in the course of the recorded conversation, Mr. Ingle asserted that he did not own the cocaine an d that the cocaine was left by anothe r person as part of a drug s ale. Furthermore, other evide nce in the record sugg ests that the recorded statements were fabricated and unreliable. At the hearing on the motion for a new trial, both Lonnie Ingle and Walte r Ingle testified that the tape recording was a fabrication and that the appellant had pa id Walter Ingle two thousand ($2,000) dollars to make the recorded statements. In denying the motion f or a new trial, the trial court stated that the recording and the alleged “frame up” were mere attem pts to commit fraud upon the court. We conclude that although certain statements w ere admissible as being against Mr. Ingle’s penal interest, the trial court’s error in excluding them was of little significance in light of the convicting ev idence. Based upon the overw helming proof against the appellant, any error involvi ng the exclusion of Mr.Ingle’s statements was harmless beyond a reasonable doubt. See Tenn. R. App. P. 36(b). III. The appellant next contends that the trial court erred by restricting the examination of Mr. Ingle in the presence of the jury. He argues that the trial court8

should have allowed hi m to question Mr. Ingl e as to whether Ingle pl anted evidence or made statements about planting ev idence at the appellant’s home. This issue is without merit. Appellant’s counsel examined Mr. Ingle at a jury-out hearing concerning Ingle’s recorded statements and his alleged involvement in appellant’s case. Mr. Ingle declined to answer under the Fifth Amendment and further indicated that he would assert his privilege if called to testify in the presence of the jury. The trial court thereafter ruled that Mr. Ingle could not be examined in front of the jury concerning his recorded statements or whe ther he planted evidence at t he appellant’s home. The appellant, however, was permitted to examine Mr. Ingle as to whether Ingle would answer any questi ons pertaining to the subject matter of appellant’s case. The appellant argues that the trial court’s restriction violated his right to a fair trial. We disagree. Our supreme cour t has previously hel d that the calling and examination of a witness w ho refuses to testify does not fulfil l the purpose of compulsory process. See State v. Dicks , 615 S.W.2d 126, 129 (Tenn. 1981). Moreover, even if the appellant had been allowed to fully examine Mr. Ingle, the jury would have been instructed to disregard any evidence or inference from Ingles’ decision to invoke his

Fifth Amendment privilege. See id. We, therefore, conclude that the trial court exercised proper discretion to limit the examination of Mr. Ingle in the presence of the jury. IV. The appellant next contends he was convicted by a jury that was comprised in violation of the Tennessee and United States Const itutions. He argues that Jury Foreperson Bill Power

s was not a resident of Cl aiborne County, Tennessee, as required by Tennessee Code Annotated Section 22-1-101 (1994). Because of this disqualification, the appellant claims that he was convicted by a constitutionally invalid jury. The appellant has w aived any such chall enge to Powers’ qual ification.9 Tennessee courts recogniz e two classifications of jury challenges, propter defectum , “on account of defect,” and propter affectum, “for or on a ccount of some affection or prejudice.” See State v. Brock , 940 S.W.2d 577, 579 (Tenn. Crim. App. 1996) (citation omitted). Objections based upon general disqualifications, such as age, residence, relation ship, feeble mindedness and the lik e are within the propter defectum

class and, as such, are co nsidered waived if not made prior to the verdic t. Durham v. State , 188 S.W.2d 555, 55 7 (Tenn. 1945). However, . . . where some particul ar disqualification of a jur or was unknown to the defendant and his attorney at the ti me of the jury’s selection , objection may properly be heard ev en after verdict, but . . . in such instances the objection allowed to be made after impaneling of the jury touched the objectionab le juror’s

partialit y and was not merely propter defec tum. Id. (quoting Monday v. State , 160 Tenn. 258, 265, 23 S.W .2d 656, 658 (1930)). There is no indication from the facts containe d in the record that Powers’ disqualification affected his par tiality in the case. The juror’s address and tele phone number were provided on his juror questionnair e. The record does not indicate that the residency qualific

ation was specifically

posed to the venire durin g voir dire. In the absence of questions to prov ide specific answers, the appellant cannot now object to the juror’s failure to v

olunteer such information. See Clariday v. State , 552 S.W.2d 759, 771 (Tenn. Crim. App. 1976), perm. To appeal denied , Tenn. 1977). Moreover there is no indication that the objection could not have been discovered with the exercise of due diligen ce before the verdict w as reached just as easily as it was discovered after trial.Notwithstanding w aiver of this issue, mere statutory ineligi bility does not render a juror inc apable of making an intellig ent and impartial verdic t. Accordingly, this

issue is without meri

t. Based upon the foregoing, the ju dgment of the trial court is affirmed.

____________________________ WILLIAM M. BARKER, JUDGE10

CONCUR:

__________________________ JOHN H. PEAY, JUDG E

__________________________ DAVID G. HAYES, JUDG E