IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 13, 2000

STATE OF TENNESSEE v. WILLIAM WASHINGTON 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 gram of cocaine with intent to sell. Washington, a range III offender, was

sentenced to twelve years in the Department of Correction. The following issues are presented on

appeal: (1) the sufficiency of the convicting evidence and (2) whether the trial court impermissibly

limited the scope of his voir dire examination of prospective jurors with regard to racial bias.

Finding no error, the judgment is affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and

NORMA MCGEE OGLE, JJ., joined.

Scott Pratt, Johnson City, Tennessee, for the Appellant, William Washington a/k/a "Freddie."

Paul G. Summers,AttorneyGeneral and Reporter, Michael Moore, Solicitor General, Mark A. Fulks,

Assistant Attorney General, Joe C. Crumley, Jr., District Attorney General, and Steve Finney,

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

OPINION

The Appellant, William Washington a/k/a "Freddie," appeals his jury conviction for one

count of sale of cocaine less than one-half gram. The Washington County Criminal Court sentenced

the Appellant as a range III offender to twelve years in the Department of Correction. The Appellant

now contends that (1) the evidence is insufficient to support his conviction for the sale of cocaine

and (2) the trial court erroneously limited defense counsel's voir dire of prospective jurors with

regard to racial bias.

After review, we affirm.
1

The proof established th at Woo dby’s participation with the Drug Task Force over a period of months resulted

in at least two hundred pending cases. During this period, Woodby, a convicted felon, was also under indictment for

drug charges.

2

“Big G’s” is never identified in the record and it is unclear whether it is a business, residence or an area of the

town.

3

Kenneth “Ho ney” Jackson was indicted as a co-defendant on these charges.

4Woodby later explained that, usually, he would receive four or five rocks of crack cocaine for a hundred

dollars, instead of the three give n to him by the A ppellant. 

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Background

In January of 1999, Larry Woodby assisted the First Judicial District Drug Task Force as a

paid confidential informant in the surveillance and purchase of drugs in Washington County.1

 On

January 20, 1999, Woodby contacted Drug Task Force Agents Walker and Robbins and advised

them of drug activity at “Big G’s”2

 in Johnson City. The agents arranged to meet Woodby at a

parking garage. At the garage, the agents fitted Woodby with a radio transmitter to record the drug

transaction and supplied him 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,” Woodby met the Appellant and Thelma “Squawky” Garland. After a brief

conversation, the subject 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 standing. . . .[The Appellant and Jackson] exchanged money and

everything, then a few moments later he c[a]me back and got in the car and we left.”

Once in Woodby’s vehicle, the Appellant turned to Woodby, remarked, “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 three rocks were] [pretty big] so you got a good deal.” Woodby

admitted that the three rocks of crack cocaine were “bigger than what 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 could not share with them.

Woodby then drove the Appellant and Garland to a residence on Pine Street. He then returned to

the parking garage where he met the agents and turned over the contraband. Subsequent laboratory

testing by the Tennessee Bureau of Investigation confirmed that the substance delivered by the

Appellant to Woodby was cocaine with a weight of .2 grams.

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

gram of cocaine 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.

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Sufficiency of the Evidence

The Appellant first contends that the evidence is insufficient as a matter of law to sustain his

conviction for possession of less than one-half gram of cocaine with intent to sell. To convict a

defendant for the sale of cocaine, the State must prove that the defendant knowingly sold a controlled

substance. See TENN.CODE.ANN.§ 39-17-417(a)(3) (Supp. 1999). The Appellant does not dispute

that the substance transferred from Jackson to Woodby 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 possession with intent to

sell. Specifically, he contends that the facts in the present case fail to establish that he shared the

criminal intent of the “seller,” Jackson. 

In State v. Baldwin, 867 S.W.2d at 359-360, this court modified the defendant’s conviction

for selling cocaine to one for simple possession, utilizing the rationale of the procuring agent

defense. Initially, we note that the commission of the offense in Baldwin predated the Criminal

Reform Act of 1989. Decisions of this court subsequent to the enactment of the 1989 Act have

consistently held that “even though the defendant served only as the ‘procuring agent,’ he remained,

pursuant to TENN.CODEANN. § 39-11-402, criminally responsible for the sale of cocaine to the 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 of 1989) (citing 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-CR00336 (Tenn. Crim. App. at Knoxville, Jul. 9, 1998) (definition of “sale” applied to defendant who

delivered the property for which he had accepted payment); State v. Michael Wayne Henry, No.

02C01-9611-CC-00382 (Tenn. Crim. App. at Jackson, May 29, 1997), perm. to appeal denied,

(Tenn. Mar. 2, 1998) (same). To establish criminal responsibility for the conduct of another, the State

must prove that the defendant, "acting with the intent to promote or 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 commit the offense."5 TENN. CODE ANN. § 39-11-402(2)

(1997). In the present case, Woodby, the confidential informant, approached the Appellant 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 cocaine to Woodby who inspected and

agreed to purchase the rocks. This factual scenario supports the conclusion that the Appellant is

criminally responsible for the sale. See, e.g., State v. Albert Dewaynn Porter, No. 02C01-9501-CC00029 (defendant directed undercover officer and informant to apartment complex where sale would

take place; defendant accepted $250 cash from officer and went to another apartment where he

exchanged money for 8-ball of cocaine; these facts establish that defendant was criminally
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responsible for the sale); State v. Jack Greenwood, No. 01C01-9109-CR-00280 (on several

occasions, undercover officer gave defendant $100; defendant left and returned later with cocaine;

these facts establish that defendant was criminally responsible for the sale). Accordingly, the

evidence is more than sufficient to support the Appellant’s conviction. See Jackson v. Virginia, 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 merit.

Restriction of Voir Dire

In his final issue, the Appellant contends that the trial court erroneously restricted defense

counsel’s voir dire of prospective jurors with regard to racial bias. Specifically, he asserts that the

court’s actions prevented the effective interrogation of prospective 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 inquiry” of racial bias, the following voir dire

examination of prospective jurors by the court:

Folks, I want to ask you just a couple of follow-up questions based upon that. This

is the year 2000. If we had prejudices, they should have been 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 two defendants a fair

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 because 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 you to do is look around the room. I mean really

look around the room. That man right there is scared. Let me tell you why. He’s

black. Look around. Everybody except for you and you is white.

Objections immediately followed. A bench conference was held with the trial court instructing

counsel that, “You’re not asking the question properly.” Counsel was advised that he could rephrase

the questions and that inquiry of racial bias could continue. With this instruction, counsel then

inquired of the prospective jurors:

How would you feel sitting in - - and I’m not saying anybody here is a racist, but how

would you feel sitting in that chair looking back through here and seeing what they

see?
6

This is so because “the determination of imp artiality, in which dem eanor pla ys such an imp ortant part, is

particularly within the province of the trial judge.” 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 specifically rejected a per se rule regardin g juror que stioning on ra cial prejud ice. Ross, 424

U.S. at 596, 96 S. Ct. at 1021, n. 8. In doing so, the Court stated:

We note that such a per se rule could n ot, in principle, be limited to cases involving

possible racial prejudice. It would 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 affiliation or national origin.

In our heterogen eous socie ty policy as well as constitutional co nsiderations militate

against the divisive assumption – as a per se rule – that justice in a court of law may

turn upon the pigmentation of skin, the accident of birth, or the choice of religion.

(continued ...)

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Again, the prosecution objected and another bench conference was held, resulting in similar

instructions from the trial court and admonitions 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 jurors in the manner which is now being challenged by the Appellant.

The ultimate goal of voir dire is to insure that jurors are competent, unbiased, and impartial.

State v. 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 jurors.6 This includes the court’s questioning of potential jurors

regarding their qualifications to serve as jurors and “the court’s supervision of questioning by the

respective parties for the purpose of discovering bases for challenge for cause 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 action did not

impermissibly intrude upon the scope of appellant’s voir dire examination of prospective jurors. The

Advisory Commission Comments to Rule 24, Tenn. R. Crim. P., provide: “The Commission

disapproves of questions tending to lead the prospective juror or suggest partiality in the first

instance. . . .” Additionally, although the court prohibited counsel’s manner of questioning on

several occasions, the court, in its own examination 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 Appellant’s argument, there is no constitutional right that a defendant

is entitled to have questions posed to the venire specifically directed to matters that conceivably

might prejudice venire 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, 93 S. Ct. 848, 850 (1973)). Specific 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.2d
7

(...continued)

Ross, 424 U.S. at 596, 96 S. Ct. at 1021, n.8 (internal citations omitted).

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at 528. The present case is absent any facts which would lead this court to conclude that specific

questioning is required. 

From the facts before this court, we cannot conclude that the Appellant’s trial was

“fundamentally unfair.” Each of the jurors ultimately impaneled made unqualified assertions that

they could be fair and impartial. The transcript before 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 inherent prejudice, the burden is on the [d]efendant to show that a juror is in some way

biased or prejudiced.” State v. 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

provided a 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 abuse its discretion, but also we find that the Appellant has not established that

the trial court’s restriction unduly impacted defense counsel’s ability to effectively exercise

peremptory challenges. This issue is without merit.

For these reasons, the judgment of conviction is affirmed.

___________________________________ 

DAVID G. HAYES, JUDGE