### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs D

ecember 13,

2000
STATE OF TENNESSEE v. WILLIAM WASHIN GTON a/k/a “Freddie” Direct Appeal from the Criminal Court for Washington County

No. 25245B Robert E. Cupp, Judge

No. E2000-00695-CCA-R3-CD February 6, 2001
William Washington was found guilty by a Washington County jury of one count of possession of less than one-half g

ram of cocaine w

ith intent to sell. Washingto n, a range III offender , was sentenced to twelve years in the Department of Correction. The following issues are presented on appeal: (1) the sufficie

ncy of the c

onvicting evide

nce and (2) whe

ther the trial cou

rt impermissibly limited the scope of his voir dire examination of prospective jurors with re gard to r acial bias. Finding no error, the judgment is affirmed.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Affirme

d.
D AVID G. H AYES , J., delivered the opinion of the court, in

which J AMES C URWOOD W ITT , J R . and N ORMA M C G EE O GLE , JJ., joined. Scott Pratt, Johnson City, Tennessee, for the Appellant, William Washington a/k/a "Freddie."
Paul G. Summers, Attorney Gener al and Reporter, Michael Moore, So

licitor General

, Mark A. Fulks, As sistantAttorney General, Joe C. Crumley, Jr., District Attorney General, and Steve F

inney , Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

The Appellant, William Washington a/k/a "Freddie," appeals his jur y c onviction for one count of sale of cocaine less than one-half gram. The

Washington County Criminal Court sentenced the Appellant as a ra

nge II I offender to twelve ye

ars in the Department of Correction. The Appellant now contends that (1)

the evidence is

insufficient to sup

port his conviction for the sale of cocaine and (2) the trial court erroneously limited defense cou nsel's voir dire of prospective ju

rors with regard to rac

ial bias. After review, w

e affirm.1 The proof established th at Woo dby’s participat ion with t

he Drug Task Force over a period of mont hs result ed in at least two hundred pending cas es. Duri ng this period, Woodby, a

convict ed felon, was als o under indi

ctment f or drug charges.

2 “Big G’s” is never i

dentified in the record and it is unclear whether i t is a business, res

idence or an area of the town.
3 Kenneth “Ho ney” Jackson was indicted as a co-defendant on these charges.

4 Woodby later explai

ned that, us

ually, h e would receive f

our or five r

ocks of crack

cocaine for a hundr

ed dollars, instead of the three give n to him by the A ppellant. -2- Background
In January of 1999, Larry Woodby assisted the First Judicial District Drug Ta

sk Force as a paid confidential info

rmant in the surveillance

and purchase of

drugs in Was hin gton Cou nty. 1 On Januar y 20, 1999, Woodby contacted Drug Task Force Ag ents Walker and Robbins and advised themof drug activity at

“Big G’s” 2 in Johnson City. The agents arran

ged to meet Woodby

at a parking garage. At the garage, the ag ents fitted Woodby with a radio transmitter to record the drug transaction and supplied hi m with $100 of marked money. Before Woodby left the garage, the agents searched Woodby’s vehicle and his person for the presence of guns or drugs. After being cleared by the officers, Woodby proceeded to “Big G’s.”
At “Big G’s,” Woodb y met the Appellant and Thelma “Squawky” Garland. After a brie f conversation, the subj ect of crack cocaine arose, followed by Woodby ’s request for “a hundred dollars worth.” The Appellant and Garland instructed Woodby to follow them “around back,” where they “got in [Woodby’s] vehicle [and] drove up to the top of Belmont . . . Then we walked over [to] where Mr. Jackson[ 3 ] was stand ing. . . .[T

he Appell

ant and Jac

kson] exc

hanged mone y and everything, then a few moments later he c[a]me back and g ot in the car and we left.”
Once in Woodby’s vehicle, the Appellant turned to Woodby, remark ed, “Here’s what you want,” and handed Woodby three rocks of crack cocaine. Woodby replied, “Man, that’s short.” 4 The Appellant explained that “[ the thr ee rocks were] [pretty big] so you g ot a good deal.” Woodby admitted that the three rocks of crack cocaine were “bigg er than wh at is usually seen on Wilson Avenue.” Shortly after the transaction, Garland asked Woodby for a “crumb.” Woodby informed the Appellant and Garland that the drugs were for his brother and that he co uld not share with them. Woodbythen drove the Appellant and Garland to a residence on Pine Street. He then returne d to the parking garage where he met the age nts and turned over the contraband. Subsequent laboratory testing by the Tennessee Bureau of I nv estigatio n confirmed that the substance delivered by the Appellant to Woodby

was cocaine with

a weight of .2 g

rams.
Based upon this proof, the jury found the Appellant guilty of possession of less than one-hal

f gram of cocain

e with intent to sell.5 In the presen t case, the trial cou rt instructed the ju ry as to the theo ry of criminal res ponsibility. -3- Sufficiency of the Evidence
The Appellant first contends that the evidence is insufficient as a matter of law to su

stain his conviction for possession of less than one-half gram of cocaine with intent to s ell. To convict a defendant for the sale of cocaine, the State must prove that the defendant knowingly sold a controlled substance. SeeT ENN
. C ODE
. A NN
. § 39-17-417(a)(3) (Supp. 1999). The Appellant does not dispute that the substa

nce trans ferred f rom Jackso

n to Wo odby was, indeed, less than one-half gram of cocaine. Nor does he contend that his actions were unknowing. However, the Appellant argues that, under the authority of State v. Baldwin , 867 S.W.2d 358 (Tenn. Crim. App. 1993), superseded by statute as stated in , State v. Porter , 2 S.W.3d 190 (Tenn. 1999), he, as the “procurer” of the cocaine, may only be convicted of simple possession and not the greater

offense of posse

ssion with intent to sell. Specificall

y, he conte

nds that the facts

in the present ca

se fail to establis

h that he shared the criminal intent of the “seller,” Jackson.
In Statev. Baldwin , 867 S.W.2d at 359-36 0, this court modified the defendant’s conviction fors elling cocaine to one for simple possession, utilizing the rationale of the procuri ng agen t defense. Init

ially , we note that the commission of the offense in Baldwin predated the Criminal Reform Act of 1989. Deci

sions of this court subsequent to t he enactment of the 1989 Act have consistently

held that “even though the defendant served only as the ‘pr ocuring agent,’ he remained, pursuant to T ENN
. C ODE A NN . § 39-11-402, cri minally resp

onsible for the sa

le of cocaine to t

he same extent as the individual who actually provided the substance.” See State v. Albert Dewaynn Porter, No. 02C01-9501-CC-00029 (Tenn. Crim. App. at Jackson, Jul. 16, 1997), aff’d by , 2 S.W.3d 190 (Tenn. 1999) (holding that the “procuring agent” defense was abolished in toto by the enactment of the Criminal Reform Act o f 1989) (cit ing State v. Jack Greenwood , No. 01C01-9109-CR-00280 (Tenn. Crim. App. at Nashville, Mar.19, 1992)). Cf

. State v. Phil Wilkerson , No. 03C01-9708-CR

00336 (Tenn. Crim. App. at Knoxville, Jul. 9, 1998) (definition of “sale” applied to defendant who delivered the property for which he ha d ac cepted pay

ment); State v. Michael Wayne Henry, No. 02C01-9611-CC-00382 (Tenn. Crim. App. at Jackson, May 29, 1997), perm. to appeal de nied , (Tenn. Mar. 2, 1998) (same). To e sta bli sh c rim ina l re spo nsi bil ity fo r the conduct of a nother, the State must prove that the defendant, "acting with the intent to pr omote o r assist the commission of the offense, or to benefit in the proceeds or result of the offense, . . . solicit[ed], direct[ed], aid[ed] or attempt[ed] to aid another person to c o mmit the offense." 5 T ENN
. C ODE A NN . § 39-11-402(2) (1997). In the present case, Woodby, the confidential informant, approached the Appe llant seeking to purchase crack cocaine. The Appellant took Woodby to a particular area where drugs could be purchased. The Appellant accepted $100 cash from Woodby and exchanged it with Jackson for three rocks of crack cocaine. The Appellant then gave the crack coca ine to Woodby whoinspected and agreed to purchase the rocks. This factual scenario s upports the c onclusion that the A ppellant is criminally

responsible for the sale. See, e.g. , State v. Albert Dewaynn Porter, No. 02C01-9501-CC

00029 (defendant directed undercover officer and informant

to apartment comp

lex where sale wou

ld take pla ce; de fendant accepted $250 cash from officer and went to another apartment wher e he exchanged

money for 8-ball of cocaine; these facts establish that defenda n t wa s criminally-4-

responsible

for the sale); State v. Jack Greenwood , No. 01C01-9109-CR-00280 (on seve ral occasions,undercover officer gave defendant $100; defendant left and returned later with cocaine; thes e facts estab lish that defendant w as criminal ly responsibl e for the sal e). Accordin gl y, th e evidence is more than sufficient to support the Appellant’s conviction. See Jackson v. Virgini a , 443 U.S. 307, 317, 99 S. Ct. 2781 , 2789 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct . 743 (1995); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied , 507 U.S. 954, 113 S.Ct. 1368 (1993); Tenn. R. App. P. 13(e). This issue is without m erit.

Restriction of Voir Dire
In his final issue, the

Appellant conten

ds that the tr

ial court erroneou

sly restric ted defense counsel’s voir dire of prospective jurors with regard to racial bias. Specifically , he asserts that the court’s actions prevented the effective interro gation of p rospective jurors which resulted in counsel’s inability to effectively

exercise his

peremptory

challenges.

The Appellant identifies in his brief, as evidence of the trial court’s “strict limitation on the inq uir y” of racial bias, the following voir dire examination of pros

pective jurors by

the court: Folks, I want to ask you just a couple of follow-up questions based up

on that. This is the year 2000. If we had prejudices, they should have be en gone years ago. And I’m going to ask you all a simple question. The fact that these two defendants are black, does that - - do you feel that you can ’t sit

and give these t

wo defendants a f

air trial? Do you have to - - do we even have to mention color this day and time? Do you - - do you

have to look over there and say that there’s a black person over there, and simply beca

use there’s a

black person over there, I can’t treat that black person like I can anyone

else? Is there anyone that feels that way this day and

time? If you do, just raise your hand.
This voir dire was immediately preceded by counsel’s unartful attempt to examine the prospective jurors in the following manner:
The first things I ’d like for all of y ou to do is look ar ound the room. I mean really look around the room. T

hat man right th

ere is scared. Let me tell you why . He’s black. Look around. Everybody except for you and you is white. Objections immediately

followed. A benc

h conference w

as held with

the tri al court instructing counsel that, “You’re not asking the question properly.” Counsel was advised that he could rephra

se the questions and that i

nquiry of ra

cial bias could co

ntinue. With this i

nstructi on, counsel then inquired of the pr

ospective jurors :
How would you

feel sitting in - - and I’m not saying anybody

here is a racist, but how would you fe

el sitting in that c

hair looking back through here and seeing what they see?6 This i s so because “t he determ ination of imp artiality, in which dem eanor pla ys such an imp ortant part, is

particularly within the province of the trial ju dge.” Ristaino v. Ross , 424 U.S. 589,594-95, 96 S. Ct . 1017, 1020 (1976) (citing Rideau v. Louisiana , 373 U.S. 723, 733, 83 S. Ct. 1417, 14 23 (1963) (Clark, J., dissenting)).

7 The Court in Ross specifical ly rejecte

d a per se rule regardin g juror que stioning on ra cial prejud ice. Ross , 424 U.S. at 596,

96 S. Ct. a

t 1021, n. 8. In doin

g so, th e Court st

ated: We note that s

uch a per se rule could n ot, in principl e, be limited to cases involving possible racial

prejudice . It wou

ld apply with equal force whenever voir dire questioning about ethnic origins was sought, and its logic could enc ompass questions concerning o ther factors, such as religious affi liation or national origi n. In our heterogen eous socie ty policy as well as constitutional co nsiderations militate against the divisi

ve assumption – as a per se rule – that justice i n a court of la

w may turn upon the pigmentation of skin, the accident of birth, or the choice of religion. (continued ...) -5- Again, the prosecuti

on o bjected and another bench conference was held, resulting in similar instructions from the trial court and ad monit ions to trial counsel. Nonetheless, the same general form of inquiry persisted and it was only at this point that the trial court intervened by examining the prospective juro

rs in the manner wh

ich is now being c

hallenged by

the Appellant.
The ultimate goal of v

oir dire is to insure that

jurors are compe

tent, unbiased, a

nd impartial. Statev. Mann , 959 S.W.2d 503, 533 (Tenn. 1997), reh’g denied , (1998), cert. denied , 524 U.S. 956, 118 S. Ct. 2376 (1998); Cazes , 875 S.W.2d at 262. In Tennessee, the trial court has wide latitude in the examination of prospective ju rors. 6 This includes the court’s questioning of potential jurors regarding their qualifications to serve as jurors and “t he court’ s supervision of questioning by the resp ective parties for the purpose of discovering bases for challenge for ca use and enabling an intelligent exercise of peremptory challenges.” See Tenn. R. Crim. P. 24(a). The actions of the trial court in this

regard will not be disturbed unless there is an abuse of the court’s discretion. State v. Irick , 762 S.W.2d 121, 125 (Tenn. 1988), cert. denied , 489 U.S. 1072, 109 S. Ct. 1357 (1989); State v. Black , 618 S.W.2d 526, 527 (Tenn. Crim. App. 1981).
Our examination of the record leads us to the conclusion that the trial court’s actiondidnot impermissibly

intrude upon the scope of appellant’s voir dire examination of prospective jurors. The Advisory Commission Comments to Ru le 24, Tenn. R. Crim.

P. , provid e: “The Commission disapproves of questions tending to lead theprospectiv e juror or sugg est partiality

in the first instan ce. . . .” A dditionally, although the court prohibited counsel’s manner of questioning on several occasions, the court, in its own examina tion of the prospective jurors, inquired as to any possible bias or prejudice the prospective jurors might have based on the Appellant’s race. Contrary to the inferences raised

by the Appel

lant’s argumen

t, there is no constitutional right that a defendant is entitled to have questions posed to the venire specifically dire cted to matters that conc eivably might prejudice venir

e men against

him. See Ross , 424 U.S. at 594, 96 S. Ct. at 1020 (citing Ham v. South Carolina , 409 U.S. 524, 527-28, 9 3 S. Ct. 848, 850 (1973)). Spec ific questioning

as to racial bias is only necessary where the particular circumstances of the case require. See Ross , 424 U.S. at 596, 96 S. Ct. at 1021; 7 Ham , 409 U.S. at 527, 93 S. Ct. at 850; see also Black , 618 S.W.2d7 (...continue d) Ross , 424 U.S. at 596, 96 S. Ct. at 1021, n.8 (internal citations omitt ed). -6- at 528. The presen t case is absent a ny facts wh

ich would lead this c

ourt to conclude th

at specific questioning is required.
F romthe facts before this court, we cannot conclude that the Appellant ’s trial wa s “fundamentally unfair.” Each of the jurors ultimately impaneled made unqualified assertions that they could be fair and impartial. The trans cript befor e this court does not demonstrate any fundamental unfairness in the conduct of the trial. Indeed, “where a juror is not legally disqualified or there is no inhere

nt prejudice, the

burden is on the [d]ef

endant to show that

a juror isin some way biasedor prejudiced.” Statev. Caughron , 855 S.W.2d 526, 539 (Tenn.), cert. denied , 510 U.S. 979, 114 S . Ct. 475 (1993). In the present case, the Appellant has failed to establish that he was not provideda trial cloaked with guarantees of fundamental fairness. Nor has the Appellant established the racial bias of any of the jurors ultimately

impaneled. Accordingly, not only do we conclude that the trial court did not a

buse its discretion, but also we find that the Appellant has not established that the tri al c our t’s res tri cti on u ndu ly im pact ed d efen se co uns el’ s ab ili ty t o ef fectively exercise peremptory

challenges. Th

is issue is without mer

it. For these reasons, the judgment of conviction is affirmed.

___________________________________ DAVID G. HAYES, JUDGE