### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 5, 2002
STATE OF TENN ESSEE v. TIMOTHY MU RRELL
Direct Appeal from the Circuit Court for Madison County

No. 00-834 Donald H. Allen, Judge

No. W2001-02279-CCA-R3-CD - Filed July 2, 2003

The appellant (defen dant), Ti mothy Murrell, was convicted by a Madison County jury of the off

enses of posse ssion o f cocaine with the intent to sell, possession of cocaine with intent to deliver, and possession of drug

paraphe rnalia. The two ( 2) felon ious posse ss i on of cocaine convictions were merged. The trial court sentenced the defendant to twenty (20) yea rs in the Depar

tment o f Correction for these offe nses and e leven mon

ths and twe

nty -nine da

ys f or the dr ug par apherna lia conviction. These se

ntenceswere to r

un concu rrently for a tota l effec tive sente

nce of tw enty

ye ars. In this appeal the defendant raises five issues for our review: (1) whether the evide nce is sufficient to support th

e convic tions for f

elonious p ossession

of coca ine; (2) w hether t he tria l court err ed in declining to give th e j ur y a missing witness instruction; (3) whether the trial court erred in allowing police officers to t estify tha t the cocaine found in the defendant’s possession was for r e-sale; (4) whether the trial court erred

in refus ing to ad

mit certain evidence for impeachment; and ( 5) whether the trial court

erred i n decli ning t o appl y a mitigat ing fact or offe red by the d efenda nt at s enten cing. After a thorough review of the rec ord and applicable aut horitie s, we find no reversible error. Therefore, the judgments of the trial cour t are AFFI

RMED.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Tr

ial Court are Affirm

ed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined.

Didi Christ

ie, Bro wnsville, Tenness ee, for the appe llant, Timo thy

Murrell.

Paul G. Summ ers, Attorney G eneral & Reporter; Renee W. Turner , Assistant Attorney Gene ral; Jerr y Woodall, District Attorney Gene ral; andShaun Brown, Assistant District Attorney General, for the appellee, State of Tennessee.-2- OPINION
Factual Backgr

ound

On January 18, 2000, office rs of the Jackson Metropolitan Narcotics Unit executed a search warrant at 113 Dupree

Street in Ja

ckson, Te nnessee . This residence was occupied by the defendant and his roomma

te, Troy Ross. Acc ording t

o Madison County

Deputy Sammy Markin, as the officers entered the residence he saw the defenda nt throw two plastic baggies of what he be lieved to be rock cocaine into the bathroom. Investigator Jackie B enton testified that when she searched the bathroom she fo und two plastic baggies of what ultimately proved to be 4.6 grams of rock coca ine. Hand scales were found in a drawer in the residence.

The defendant put

on proof that the cocaine

was not his. According to the defense proof the cocaine belonged

to the defendant’s roommate, Mr. Ross. The defendant testified that Ross often smoked “c

rack” in the bath

room. Following a presentationof the evidencesummarized above the jury c onvicted the defendant as noted herein.
Sufficiency of the Evidence

The defendant maintains that the evidence is insufficient to support the verdict because no cocaine was actu ally

found on the defendant’s person and there is no direct e vidence in the record that the defendant possessed cocaine or sold cocaine. When a defendant challeng es the sufficiency of the evidence, this Court is obliged to review that claim according to certa in well-s ettled pr

inciples. A verdict of guilty , rendered by a jury and “ approved by the trial judge, accredits the testimony of the” state’s witnesses and resolves all conflicts in the testimony in favor of the state. State v. Cazes , 875 S.W.2d 253, 2 59 (Tenn . 1994); State v. H arris , 839 S.W.2d 5 4, 75 (Te nn. 1992) . Thus, altho ugh the accused is originally cloaked with a presumptionof innoce nce, the jury verdict of guilt y removes this presumption “and replaces it with one of guilt.” State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, t he bu rden of proof rests with the defendant to demonstrate the insufficiency

of the convicting evidence. Id. The relevant question the reviewing court must answer is whether

any rationa l tr ier of fa ct could have found the accused g uilty of every

element of the offense beyond a reaso nable dou

bt. See Tenn. R. A

pp. P. 13(e ); Harris , 839 S.W.2d at 75. In making this decision , we are

to accor d the state “the stro ngest le gitimate

view of th

e evidence as we

ll as all
reasona ble and legitimate inferences that may be drawn therefrom.” See Tuggl e , 639 S.W.2d at 914. As such, this Court is precluded from re-wei ghing

or reco nsiderin g the ev

idence in evaluating the convicting proof. State v. Morgan , 929 S.W.2d 380, 3 83 (T enn. Crim. App. 1996 ); State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. Ap p. 1990). Moreover, we may not substitute our
own “inferences for

those drawn by the

trier of fact from circumstantial evidence.” Matthews , 805 S.W.2d at 779.-3-

Turning to the facts of the instant case, it appears that at least one police officer saw the defendant throw what ultimately proved to be 4.6 grams of rock cocaine into the ba thr oom of his residence. The cocaine was cut into rocks of vary ing sizes and values. Hand scale s suit able for weighing cocaine we

re also found at the residence.
Moreover, it is apparent from its verdict that the jury rejected the defendant’s testimony that the cocaine was not his. This was the jury ’s prerogative as the trier of fact . Under t hese circumstances the evidence is clearly sufficient to support the two convictions for posse ssion of cocaine with the intent to sell and intent to deliver.

Absent Material Witness Instruction

The defendant claims that he was entitled to have the jury instructe d with wha

t is commonl

y referred to as the “absent

materia l witness instructi on.” Tha t instruct ion is acc urately embodied

in Tenness ee Patte

rn In struction , Criminal s ection 42 .16, which provide s: When it is within the power of the state or the defendant to produce
a witness who possess es pecul iar know ledge c oncerning fac ts essential to that pa

rty ’s conte

ntions and

who is ava

ilable to one side at the exclusion of the other, an d t he pa rt y to whom the witness is availab le fails to ca ll such witness, an inference arises that the testi mony of s uch witness would have been unfavorable to the side that should have called or produced such witness. Whether there was such a witness and whether such in inference has arisen isfor you to decide and if so, y ou are to determine what weight it shall be given.
(This inference does not

apply to the defendant because [he] [she] has
a lawful right not to testify a nd [his] [her] failure to testify cannot be considered

for any pur

poses against [him] [her], nor can any infer en ce be drawn from such fact.)

Committee on Pattern Jury I nstruction (Criminal), Tennessee Pattern Jury Instructions-Criminal 4 2.16 (6 th ed. 2001) ; see also State v. Middlebrooks , 840 S.W.2d 317, 334 (Tenn. 1992). The defendant filed a special request with the trial court to have th is instruc tion give

n to the jury, and that request was denied. The issue therefore is whether the circumstances of the i nstant cas e trigger a requirement that the trial court instruct the jury concerning an “absent witness.”

The defendant maintains that he was entitled to the “a bsent witness” instruction because the state failed to call the confidential informant whose previous drug buy from the def

endant formed the basis of the search warrant in the instant case. The infor mant was n ot called

as a state witness, and the defe

ndant mai ntains tha

t had the s tate ca

lle d the inf

ormant, this individual would have corroborated

the de fendan t’s te stimo ny that h e had not so ld an

y d rug s fro m his r

eside nce. We-4-

respec tfully

disagre e with the defendant’s contention given the circ umstances of this case for the reasons that follow.
First, we are of the opinion that in the absence of any defense motion or cou rt order to compel disclosure of the identity of the inf ormant there was no duty

on the part o f the t rial j udge to give the requested absent material witness instruction. There i s a c ommon law p rivileg e in Tennessee that allows the state to withhold from a criminal defendant

the identity of a conf

idential informant. House v. St

ate , 44 S.W.3d 508, 512 (Tenn. 2001). The court in House recognized the usefulne ss to law enf

orceme nt of confidential informants and acknowledged the danger to such persons if their identities were routinely reve aled. Id . However, the court, citing Roviaro v. United States , 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), noted:

Under the fundamental fairness limitation, the privi lege [to withhold the i nformant’s identity] must give way when the disclosure of

th e informant’s identity or of the con tents of h

is communic ation “is relevant and helpful to the defense of an accuse d, or is essential to a fair determination of a cause . . .”

House , 44 S. W.3d at 512 (citi ng Roviaro , 353 U.S. at 60-61). Thus, Tennes see common law gener ally requires disclosure when the informant was a participant in the crime. See id . at 513; State
v. Campbell , 549 S.W.2d 9 52, 954 (T enn. 1977 ). As a re sult, when the ident ity of an informant who is also a ma

terial w itness to the cr

ime under prosecu tion is rev ealed by

some mea

ns to the defense, and the state declines to call that known informant, the defendant may be entitled to an a

bsen t material witness instruction. See Jones , 598 S.W.2d at 224.
However, when the

identity of the inf ormant is a

llowed to r

emain confide ntial, the state is in effec t grant

ed a privilege t

o disquali fy

the in formant as a wi tness and cannot be penalized for exercising that privilege by having the jury

instructed that the in formant is an absent material witness. See United States v. Jackson , 384 F .2d 825, 828 (3d Cir. 1967). In other words, “the ‘missing witness’ rule has no applic ation toconfidential informants. If the identity of an informant has been ruled properly

kept in the confide

nce of th e gove rnment, it would be ‘ ludicrou s’ to hold that the d efense

is entitled to a missing witness instruction.” State v. John David Smith , 1984 Tenn. Crim. App. LEXI S 3016, a t * 14 (Ten n. Cr im . A pp . a t J ac ks on , N ov . 1 4, 19 84 ) ( Da ug ht re y, concurring in part, dissenting in part) (doc ket no. and Westlaw citation not available).

The cogency

of this rul e is inescapable. The polic y underly ing the “ absent ma

terial w itness” instruction is that if a

party can off er no g ood reas o n forfailing to call a material witness who ostensibly

would be disposed to favor

that party, a log

ical inference arises that the witness’ testimony would be unfavorab le to t he party . When an in formant’ s identity

is kept se cret how ever, because of the co mmon law pr ivil ege discussed earlier, the state has a good r eason for not

calling the witne ss, i.e. the exercise of the state’s privilege. Under these circumstances the giving of an “absent material witness” inst ructi on wou ld be m islea ding t o the j ury and un dercut the fac t find ing p roc ess. See gener ally Alan Stephens, Annotation, Adverse P r esumption or Inference Based on State’s Failure-5-

to Produce or Examine Information inCriminal Prosecution – Modern Cases , 80 A.L.R. 4 th 547, 572- 74 § 9 (1990).
Turning to th e facts of the instant case, we are unable to find in the record before us any defense attempts t

o compel disclosure of the informant’s identity . Thus, the state was privileged not to callthe informant as a witness and should not be penalized for exerc isin g that p rivil ege thro ugh a misleading absent witness instruction.
Moreover, it appea

rs to us that re gardle ss of any defense efforts that might have been made to disclose the identity of

the informant, such efforts would have been futile. The informant in the instantcase supplied information for a search wa rrant and did not witness nor participate in the crimes for which the defendant was actually prosecuted. Under all of the circumstances we a re of the opinion tha

t the tria l court c orrect

ly d enied the request for an “ absent m aterial wit ness” instruction.

Opinion Testimony of Police Office rs
The defendant complains that the testimony of two police officers was improperly admitted i n thi s case. First, he alleges that I nvestigator Jackie Benton was improperly allowed to testify as to how much crack cocaine is usually purchas ed bya user of this drug and to the price of cr ack cocaine on the streets. Se co nd , t he de fe nd an t o bj ec ts to Inv es ti ga to r J ef fr ey S he ph ar d’ s t es ti mo ny, in response to a prosecution question, that he arrested the def endant for possession with the intent to sell because of the amount of crack coc aine found at the defendant’s residence . The defendant characterizes the testim

ony of both the se offic ers as imp ermissibl e lay opinion te stimony . Beca use the nature of

the testimony from eac

h officer is different, we will analy ze each testimony

se pa ra te ly, rather than lumping both tog ether a s does the defenda nt. Investigator B enton

On direct examination of Investigator B enton the following colloquy took place between her
an d t he as si st an t d is tr ic t a tt or ne y: Q: Do y ou partic ipate in w eighing the coca ine or an yth ing like that? A: Sometimes I do. Q: Do y ou reca

ll if y ou did at th

is point? A: No, sir, I don’t believe I did. Q: At some point, is it sent to TBI for complete an alysis and off icial weight, to the Crime Lab? A: Yes, sir. Q: Were there any

other items in the bathroom, either in the tub or scattered on thefloor, other than the items that you desc ribed there? A: No, sir.-6-

Q: Do you reca

ll examining tho se

ite ms? Did you count how many crack cocaine rocks were in t here or just take a

sort of c ursory

glance at them? A: I don ’t reca

ll if I did or not. Q: Investigator

Benton, I want to talk brief ly about y our background. You’ve b een with Metro Narcotics for five y ears, I believe y

ou said? A: Yes, sir. Q: During that time

with Metr

o Narco tics, have you investig ated narcotics transactions or trafficking in the Jackson-Madison County area? A: Yes, sir. Q: Has some of that involved crack cocaine? A: Yes, sir. Q: Have you been invo lv ed in any under cover purchases, either throug h yourself or other officers or confidential informants, or cr ack cocaine? A: Yes, sir. Q: Have you

also par tic ipate d in making arrests of individuals for crack coc aine possessio n or posse ssion with i ntent? A: Yes, sir. Q: Now, crack cocaine sales, or as f ar as your participation, do you have any idea how manyy ou’ve participated in, either through confide ntial informants or yourself or other und ercove r office rs? A: I’ve

caught numerous amounts of crack, my self working for other ag encies, and I couldn’t tell y ou in the tw elve y

ears. Q: You yourself ha

ve participated as an undercover of ficer? A: Yes. Q: Now, let

me ask you

this. How is crack cocaine ty pically sold, in y

our experience? A: In ro ck form. Q: Is it ty

pically sold or exchang ed for cash? A: Yes, sir. Q: Typ ic al ly, in your expe rience in purchasing it under cover, how much do y ou purchase at any

give time? A: I’ve

purchas ed at the

least ten dollars ($10) worth, which is a ten dollar ($10) rock, and I’ve purcha sed up to an ounce. Q: In our e xp erience here in Jackson purchasing c rack cocaine, what’s the ty pical amount purchased by

someone on the street to use? A: Twenty dollars ($20) , twenty rock. Q: A twenty dollar

($20) ro ck, would

that be one hit of c ocaine, or is that f or multiple use, or do you know? A: It’s just a bigger rock. They can smoke a little longer on i t than ten dollars ($10) worth be cause it

would be p oint two (. 2) gra ms. Q: Point two (.2) grams would be the weight of what size? A: Twenty dollars ($20)

. Q: In loo

king at t hat evide nce in the re, are there nu merous c rack co caine r

ocks? A: Yes, sir.-7-

Q: Do you see a

nything in there

that would look like twenty dollar ($20) r ock? A: Yes, sir. Q: About wha

t size would

that rock be and th

e equiva lent? A: About

the size of the top of my little finger . It just depends sometimes on if you’re white or b lack or m ale or f emale ho w good y

ou’re se rved, too , so it just de

pends. Q: By the pe

rson selling it, you mean? A: Yes, sir. Q: Would it hav e any thing to d o with whe

ther y ou’re a regula r custome r or not? A: Someti mes it does. Depends on if they ha ve a large quantity

or if they have

jus t a little bit. Q: Do you see coc aine rocks in there that are valued at more than twenty dollars ($20)? A: Yes, sir. Q: In looking in there, do y ou see the largest crack c ocaine rock in there? A: Yes, sir. One of the plastic bags on ly h as one ro ck in it. Q: Do you have a

ny estimate of the va

lue of that crack cocaine rock?

At this point the defense registered an objection on the ba sis “lack of expertise. ” The trial court overruled the objection.

The defendant

maintains on appeal that Investiga tor Benton was not qualified as an expert witness and that she was erroneously allowed to give a lay

opinion asto the hab its of drug dealer s. Therefore, an analy sis of the two evidentiary r ules that arguably

govern theadmission of this type of evidence is in order. Tenness ee Rule o f Evidenc e 701 pro vides:
Opinion testimony

by l ay witnesse s. – (a) Generally . –If a witness is not testify

in g as an expert, the witness’s testimony in the form of opinions o r infere nces is limited to those opinions or inferences which are (1) rationally ba sed on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. (b) Value. A witness ma y testify to the value of the witness’s own property or service s.

Tenn. R. Evid. 701 . This rule permits a

lay wit ness to tes tify in the form of an opinion in the circumstances outlined. Thus, alay per son may, as appropr iate, testify as to his/her per sonal observation of a fact or event in the form of an opinion commonly understood by most people. See State v. Wingard , 891 S.W.2d 628, 636 (Tenn. Crim. App. 1994).-8-

Tenness ee Rule o f Evidenc e 702 pro vides:
Testimony

by experts. – I

f scientific, technical, or other s pecializ ed knowl edge will substa

ntially assist the trier of fact to understandthe evidence or to determ ine a fact in issue, a witness qualified as an expertby k

nowledg e, skill, e

xperienc e, tr ainin g, or education may testify in the form of an opinion or othe rwise.

Tenn. R. Evid. 702. This rule deals with testimony in the form of an opinion based on the witne ss’ particularized expertise on a subject under considerationby a court a nd/or jury. I

n order to testify basedon this rule the witness must be qualified as an expert on the subject and the opinion may be basedtotally on expertise, on personal observa tion, or on some combination of both. In s um ma ry, lay opinion testimony

under Rule 701 is limited to those observations of a lay

witness that are not basedon scientific, technical or other specialized knowledge which would qualify the witness a s an expertunder Rule 702. See United States v. Conn , 297 F.3d 548, 5 53 (7 th Cir. 2002) (construing Fed. R. Evid. 701, 702).

It appears that most courts that have considered the question of

whether police officers may testify to the habits of drug dealers have conc luded that they may do so if they are

quali fied t hrough experience, or other means, to testify as an expert witness under the federa l and state

counter parts to Tennessee Rule of Evidence 702. See Walter G. Amstutz & Bobby Marzine Ha rges, Evolution of Controve

rsy : The Dau

bert Dilemma: The Application of Daubert v. Merrell Dow Pharmaceut i cals, Inc. to Expert Testimony of L aw Enforcement Officers in Nar cotics Related Cases , 23 U. Haw. L. Rev. 67, 100-07 (2000) ( collecting cases).

In Tenness ee, this Co

urt has f ound testi mony

such as th at giv en by I

nve stigato

r Bento n to be admissible under Tennessee Rule of Evidence 702. See Statev. Carey , 914 S.W.2d 93, 96 (Tenn. Crim. App. 1995 ); State v. William Ray Collier , M2001-00893-CCA-R3-CD, 2002 WL 170731, at *3 (Tenn. Crim. App. at Nashville, Feb. 4, 2002). Most recently a panel of this Court held that such testimonywas admis sible unde r Rule 702

or Rule 701. See St ate v. S amu el L. Giddens , No. M2002- 00163-CCA -R3-CD , 200 3 WL 1787289 (Tenn. Crim. App. at Nashville, Apr. 4, 2003). Notwithstanding the decision in Giddens , we believe the proper approac h is to admit evidence such
as that given by

Investigator

Bender under Rule 702 if the witness is properly qualified as an expe

rt. We beli eve that a resort to Rule 701 when the witness’ opinions are offe red based onth e particularized experience of trained narcotics of ficers is improper. See Conn , 297 F.3d at 554.
Turning to the facts of the instant case, it appears that Investig ator Benton testified that she had been in la

w enfor cement f or twelve ye ars. She h ad been

in the milita

ry poli ce and ha d specialized in the Jackson Police Narcotics Squad for five y ears. She had participated in numerous narcotics arrestsinvolving crack c ocain e. She had participated in undercover opera tions, used confidential informants, and made directarrests for crack coca ine charges. We believe that Investigator

Benton was qualified to testify as an expert witness under Tennessee Rules of Evidence-9-

702 as to the value and

packaging of cra

ck cocaine for resale. Ac cordingly , we find that with respect to Inv estiga

tor Ben ton the defendant ’s objec tion to the a dmitted te stimony

lacks me rit.

Investigator Shepar

d

The defenda

nt compla

ins of the p rosecutor’s elicitation from Inve stigator Shepard that Shepardarrested the defendant with possession with intent to sell because of the a mount of crack cocaine that was found. The S tate res ponds that the question was asked on re-direct examination of Shepardafter

the defense had inquired into the officer’s motivation in arre sting the defendant for a f el on y.

It does appear

that on cross-examination, Shepardwas asked whether he made the dec ision to charg e the def

endant w ith posses sion with the intent to sell. When

Sh e pard answered that he made the decision, defense counsel then asked if Shepard ha d seen the defendant sell cocaine. Shepard responded that he h ad not.
We are of the opinion that these isolated two questions oncross-e xamination d

id not open the door to a w

holesale inquiry into the of

ficer’ s m otivation for c harging the defenda nt as he did. Such evid ence is o f dubious r

elevanc e and ha s the pote ntial for undue pr ejudice . Never

theless, in response to the cross-examination, the prosecutor asked Shepard what motivated him to charge the defendant with possession for resale. Given the brief mention of t he reason, the weight of the evidence as a whole, and the instruction to the jury that, inter alia , the amount of controlled substance may raise an inference

of intent to sell, we find that any er ror on this point was harmless. See Tenn. R. App. P. 36(b).

Impe achment of Forme r Deputy Sammy Markin

The defendan t co mplains that he was not allowed to put Chief William Mitchell on the witness stand and inquire of Mitchell as to his op inion of Depu ty Markin’s credibility. The defendant also complains that he was not allowed to ask Mitche ll about a specific instance where Markin was allegedly

untruthful in denying

al legations of excessive force in an unrelate d case. Ap pa re nt ly, Markin had been terminated as a res ult of those

allega tions. I n an offe r of proo f on this point the f

ollowing exchang e took pla

ce betw een def

ense cou nsel and C hief Willia

m Mitchell : Q: Sir, during your

personal acquaintance and in y our professional opinion, have you come to form a

n opinion as to the truthfulness or untruthfulness of Mr. Sammy Markin? A: Well, that’s somewhat of a difficult question to answer. I can say tha

t in the most recent IA investig ation I conducted that resulted in his termination, that he denied all the allegations of misconduct that were involved.-10-

Under questioning from the trial court Mitchell admitted thatalthoug h he had k nown Mar

kin for several years, he had

no personal knowledge of alleg ations of misconduct again st Markin with the exception of the incident that resulted in his termination.

Tenness ee Rule o f Evidenc e 608 pro vides in pe rtinent pa rt:
(a) Opinion and Reputation Evidence of Charac ter. – The

credibi lity of a witness may be a

ttacked or supported by

evidence in the form of opinion or r eputat ion, but subject to these limitations: (1) the
e vidence may

refer only to chara

cter fo r truthfuln ess o r untruthf ulness, and (2) the evidenc e of truth ful char acter isadmissible only after the character of the witness for truthfulness has be en attacked. (b) Specific

Insta nces of C onduct. –

Specific instances of conduct of
a witness for the purpose of attacking or supporting the witness’s
cr ed ib il it y, other than convictions of crime as provided in Rule 609, may not be proved by e

xtrinsic evidence. They may , howev e r, if probative of truthfulness or untruthfulness and under the following condition s, be inquired into on cross-ex a mination of the witne ss concerning the witness’s character for t ruthfuln ess or untrut

hfulness
or concerning the

ch aracter for truthfulness or untruthfulness of another witness a s to whic h the char acter w itness be

ing cro ssexamined has te stified. The conditions which must be satisfied b efore allowing inquiry on c ross-examination about such conduct probative solely of truthfulne ss or untruthfulness are: (1) The court upon request must hold a hearing outside the jury ’s presence and must determine that the alleged conduct has probative
va lu e a nd th at a r ea so na bl e f ac tu al ba si s e xi st s f or th e i nq ui ry.

Tenn. R. Evid. 608. Under this rule before a witness can offer an opinion on another wi t ness’ truthfulness, it must

be estab lished tha

t the cha racter witness is sufficiently familiar with the primar y witness’ character to offe r an opini o n on the subject. See State v. Dutton , 896 S.W.2d 114, 188 (Tenn. 1995). In the instant case, althoug h Chief Mitchell testified he knew Markin, he never stated how well he knew Markin, or how he was a cquainte d with Mar

kin’s cha racter . The only

argua ble basis offered for a potential opinion as to Markin’s chara cter for truthfulness was that Markin had deniedusing excessive force after a c omplaint for that cond uct was f iled. As noted by

the trial court, that is not proo f that Mar

kin lied, o nly

that he de

nied the c harge s again st him. The

record is devoid of proof that this denial amounted to a falsehood. We do not know, for example, whether Markin’s denial of the charges was based on a claim th at the inc ident in question never occurred or whether Markin admitted t

he incide nt but deni ed th at the level of force he used was excessive. While the1 The tri al judge ruled that Markin hims elf could be aske d by the def ense as to whether he li ed concerning the allegatio ns of m iscon duc t against h im. T he de fenda nt electe d no t to exa mine M arkin o n this po int.
-11- former might be a lie, the latter is a difference of opinion. Under these c ircumstances we believe the trial court co

rrectly refused to allow Chief Mitchell to venture an opinion on Markin’s character for truthfulness.

We are also of the opinion that the trial court correctly refused to allow Mitch ell to testify
as to alleged specific instances of conduct b y Ma

rkin in an attempt to

discredit the former officer. Rule 608(b) pe

rmits such

proof asthat offe

red by the defe ndant if th e proof i s elicite d throug

h crossexamination of the primary witness concerning that witn ess’s character for truthfulness or untruthf ulness. 1 Also, a char acter witness may be aske d about specific instances of conduct reflecting on character

for untr uthfulne ss if the ch aracte

r witness has testif

ied as to th

e truthfu lness of the pr imary witness.
However, under the circumstances present ed i n the insta

nt case, the trial

court co rrectly refused to allow Mitchell’sextrinsic t estim ony as to specific instances of allegedly untruthful conduct o n Markin’ s part. Th is issue is without mer

it.

Sentencing

In his last iss ue the defendant complain s that the t

rial cou rt refus ed to acc ept as a

mitigating factor that the defe

ndan t’s crimin al co nduc t neit

her c ause d nor

thre aten ed se

riousbodil

y injury . We must respectfully disag

ree.
When an accused challengesthe length, range, or manne r of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by t

he tr ial court are c orrect . Tenn. Co de Ann. § 4 0-35-401 (d). Thispresumpt ion is “conditionedupon the a

ffirmat ive showing in the r

ecord th at the tri al court

c o nsidered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, rec eived at the trial and se ntenc ing hea ring; (b) the presentence report; (c) the princ iples of sentencing and arg

uments a s to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; ( e) any statutory mi tigat ing o r enhancement factors; (f) any statement made b y the defe

ndant regarding sentenc ing; and (g) the potential or lack of pote ntial fo r rehabilit ation or tr eatment. See Tenn. Cod e Ann. §§ 4 0-35-102 , 103, -21 0; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Th omas , 755 S.W.2d 838, 8 44 (Tenn . Crim. App. 1988). If t

his Court’s review reflects that the trial court followed the statutory sentencing procedure, that the court

imposed a lawful sentence after having givendue consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s-12-

findi ngs of fact are adequately supported by the record, then this Court may not modify

the sentence im posed below. See State v. Pike , 978 S.W.2d 9 04, 926-2 7 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The sentence range for

a Class B felony

for a Range I

I, multiple offender is twelve to twenty ye ars. See Tenn. Cod

e Ann. § 40 -35-112(

b)(2). I n setting the appr opriate sente nce wi thin the ran ge for a Class B felony , the trial court is to start with the minimum sentence in the range, increase the sentence as appropr

iate for any enhanc ement fa

ctors, and then d

ecrea se the se

ntence a s appropr

iate for any mitigating

factors. See id . § 40-35- 210(c)- (e). The trial cou rt in this c ase e nhanced the Defendant’s sentence from the minimum sentence of twelve years to a sentence of twenty y ears after finding three enhancement factors and no mitigating factors. Specifically, the tria l court determined that the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessa ry to est abl ish the appropriate range, see id . § 40-35-114(1) (Supp. 2001) (amended 2002); the defendant had a previous history of unwillingness to comply with the con ditions of a sentence involving release into the community , see id . § 40-35-114 (8); a nd, the felony wa s comm itted while the defendant was on some form of release , see id . § 40-35- 114(13). These findings are clearly

supported by the record.

The d efendant relies on State v. Ro ss , 49 S.W.3d 833 (Tenn. 2001), to argue that the tri a l
co u rt erred i n refus ing per se to conside r Tenne ssee Code

Annotate d section

40-35-11 3(1) as a mitigating factor . Althoug h the def endant is correct that ther e is no per se rule of e

xclusion of

this mitigating factor

in cocaine possession cases, both thesupreme court and this court have held that a trial court

may acc ord this factor very little weight in the overall sentencing determination. See, e.g., Statev. Chianti Fuller , No. M2001- 00463-CCA -R3-CD, 2 001 WL 1 660846 at *6 (Tenn . Crim. App. at Nashville, Dec. 28, 2001). Given the seriousness of the enha ncement factors in this case we be lieve this mitigati ng fac tor is entitled to ve ry little wei ght and

that the d

efenda nt’s sente nce is eminently appropria

te.

Conclusion
In light of the fore going the judgment of the trial court is AF FIRMED.

___________________________________ JERRY L. SMITH, JUDGE