IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 28, 2010 at Knoxville

STATE OF TENNESSEE v. DERRICK LEMON GOODE

Appeal from the Circuit Court for Bedford County

No. 16697 Robert Crigler, Judge

No. M2009-02259-CCA-R3-CD - Filed November 17, 2010

A Bedford County Circuit Court jury convicted the defendant, Derrick Lemon Goode, of one

count of the sale of .5 grams or more of cocaine, see T.C.A. § 39-17-417(a)(3) (2006), and

one count of the delivery of .5 grams or more of cocaine, see id. § 39-17-417(a)(2). The trial

court merged the convictions and imposed a sentence of 12 years’ incarceration. In this

appeal, the defendant contends that the trial court erred by failing to excuse a juror for cause,

that the trial court erred by denying his pretrial request for material pursuant to Rule 26.2 of

the Tennessee Rules of Criminal Procedure, that the State withheld exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963), that the trial court erred by failing to

give a limiting instruction regarding the jury’s use of the defendant’s prior convictions, and

that the evidence was insufficient to support his convictions. Discerning no error, we affirm

the judgment of the trial court.

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

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the Court, in which NORMA MCGEE

OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Emeterio R. “Terry” Hernando, Lewisburg, Tennessee, for the appellant, Derrick Lemon

Goode.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsey Paduch Stempel, Assistant

Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles,

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

OPINION

During a lengthy investigation into the illegal drug trade in Bedford County,
the 17th Judicial District Drug Task Force (“Task Force”) focused its investigation on a

“faction” of known and suspected drug dealers headed up by Bailey family matriarch Hazel

Bailey. The faction included Ms. Bailey; her son, Jonathan “John John” Bailey; her daughter

and the defendant’s wife, Karen Bailey Goode; and the defendant. During the investigation,

the Task Force utilized the services of a then-confidential informant, Jessica Berry. On April

24, 2008, at the behest of the Task Force, Ms. Berry telephoned a cellular telephone she

knew belonged to Hazel Bailey and inquired of Jonathan Bailey whether he had any cocaine

she could purchase. Mr. Bailey told her that he was in Murfreesboro but would provide her

with cocaine when he returned to Bedford County.

Later that same day, Task Force Agent Shane George picked Ms. Berry up and

asked her to telephone Hazel Bailey again and request $100 worth of crack cocaine. Ms.

Berry complied, and the defendant answered the telephone and instructed Ms. Berry to go

to a residence on West End Circle in Shelbyville. Agent George searched Ms. Berry’s

person, fitted her with an audio transmitter and digital recording device, and provided her

with $100 in marked currency. He then drove her to a location near West End Circle and

dropped her off. He watched her walk toward the rendevous point but lost sight of her before

she got there.

Task Force Agent and Assistant Director Tim Miller maintained visual

surveillance of Ms. Berry as she approached the residence. He observed the defendant exit

the house, take money from Ms. Berry, enter the house via the garage, and then return to Ms.

Berry and hand her a small object that Ms. Berry later described at trial as a small amount of

crack cocaine “knotted up” in a plastic bag. Ms. Berry left the residence and met Agent

George a short distance later. She gave the cocaine to Agent George, who had maintained

audio surveillance during the transaction, and Agent George sent the material to the

Tennessee Bureau of Investigation (“TBI”) for forensic testing.

Testing by the TBI established that the material provided to Ms. Berry by the

defendant was .7 grams of cocaine base, or crack cocaine.

The defendant denied participating in the drug transaction, claiming that Ms.

Berry had lied about receiving cocaine from him and that Agent Miller was mistaken in his

identification. The defendant maintained that he was at his residence in Bell Buckle at the

time of the transaction and, therefore, could not have sold cocaine to Ms. Berry in

Shelbyville.

From this proof, the jury convicted the defendant as charged. Following a

sentencing hearing, the trial court merged the jury verdicts into a single judgment of

conviction and imposed a sentence of 12 years’ incarceration.

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In this appeal as of right, the defendant alleges that the trial court erred by

refusing to excuse a juror for cause, by denying his pretrial request for Rule 26.2, or Jencks,

material, and by failing to provide an instruction limiting the jury’s consideration of the

defendant’s prior convictions. The defendant also contends that the State withheld

exculpatory evidence in violation of the standard pronounced in Brady v. Maryland, 373 U.S.

83 (1963), and that the evidence is insufficient to support his convictions. We will consider

each claim in turn.

I. Juror Challenge

The defendant claims that the trial court erred by failing to excuse for cause

potential juror Winstead (Juror Winstead) following Juror Winstead’s admission that he

believed “by a certain degree” that the defendant was guilty based upon the statements of the

lawyers during voir dire. The State contends that the trial court did not err by refusing to

excuse Juror Winstead for cause because, upon further questioning, the juror indicated that

he could be impartial. We agree with the State.

“A court may discharge from service a grand or petit juror . . . for any other

reasonable or proper cause, to be judged by the court. That a state of mind exists on the

juror’s part that will prevent the juror from acting impartially shall constitute such cause.”

T.C.A. § 22-1-105 (1994). Accordingly, the trial court retains “wide discretion in ruling on

the qualifications of a juror,” State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993) (citing State

v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989)), and the trial court’s ruling in this

regard will not be overturned absent a showing of an abuse of that discretion, Burns v. State,

591 S.W.2d 780, 782 (Tenn. Crim. App. 1979). “[I]rrespective of whether the trial judge

should have excluded the . . . challenged jurors for cause, any error in this regard is harmless

unless the jury who heard the case was not fair and impartial.” Howell, 868 S.W.2d at 248

(citing State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989)). When the defendant

preserves the issue by exercising all of his peremptory challenges, “the failure to correctly

exclude a juror for cause is grounds for reversal only if . . . an incompetent juror is forced

upon him.” Howell, 868 S.W.2d at 248 (citing Ross v. Oklahoma, 487 U.S. 81, 89 (1988);

State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990)).

The following exchange occurred during voir dire:

[Defense Counsel:] Now, who among you

believes that this defendant by a certain degree is already guilty?

If you think that this defendant is already guilty,

by any degree, 10 percent, 20 percent, 30 percent can you please

raise your right hand?

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So you think that this defendant is already guilty

by a certain percentage?

[Juror Winstead]: Basically from what I have

heard from y’all.

Shortly after this exchange, the trial court called Juror Winstead to the bench, and the

following exchange occurred:

The Court: There are no right or wrong answers

up here. I think you were saying that based upon what the

lawyers had said you had an idea he was guilty. There is a part

of the jury instructions that what the lawyers say is not evidence.

[Juror Winstead]: All right.

The Court: Could you wait and hear the proof

and then the jury instructions and decide based on that whether

or not you feel like he is guilty or not?

[Juror Winstead]: Yeah.

The Court: Let me let the lawyers ask you some

questions if they want to follow up.

[Prosecutor]: No questions.

The Court: Did you want to ask any questions

to follow up?

[Defense Counsel]: No, Your Honor, as long as

he says that he can stay and listen to the evidence.

[Juror Winstead]: All right.

Shortly thereafter, the defendant challenged Juror Winstead for cause. The trial court refused

to excuse Juror Winstead, finding that Juror Winstead’s response to questioning indicated

that he could decide the case based solely on the evidence presented. The defendant did not

use a peremptory challenge to remove Juror Winstead from the jury despite having

challenges remaining at the time he made the challenge for cause. He later exhausted his

peremptory challenges without striking Juror Winstead. The record clearly supports the

conclusion of the trial court. Despite initially stating that he was inclined to believe the

defendant was guilty, Juror Winstead stated that he understood that the statements of the

lawyers were not evidence and that he could decide the case solely on the evidence. Under

these circumstances, the trial court did not abuse its discretion by refusing to exclude Juror

Winstead for cause.

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II. Jencks Material

The defendant next asserts that the trial court erred by refusing his pretrial

request for the pretrial statements of the State’s witnesses pursuant to Rule 26.2 of the

Tennessee Rules of Criminal Procedure. The State contends that the defendant has waived

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our consideration of this issue by failing to include citations to the record or to authorities in

his brief. In the alternative, the State asserts that the defendant is not entitled to relief

because Rule 26.2 provides for disclosure of witness statements only after a witness has

testified. We agree with the State on both points.

The defendant argues that the trial court should have granted his motion for

Jencks material and required the State to provide him with the requested materials “not less

than forty eight (48) hours (or a reasonable period of time) before the witnesses testify at the

trial.” The defendant failed, however, to support this assertion with any argument detailing

how the trial court’s refusal prejudiced his case, much less any citation to appropriate

authorities or to the record. In consequence, he has waived our consideration of this issue.

See Tenn. R. App. P. 24(b); Tenn. Ct. Crim. App. R. 10(b).

Moreover, our supreme court “in interpreting Rule 26.2 has held that even in

a capital case, the State is not required to produce witness statements until the conclusion of

the witness’s testimony on direct examination.” State v. Caughron, 855 S.W.2d 526, 535

(Tenn. 1993) (citing State v. Taylor, 771 S.W.2d 387, 391 (1989)). As such, there is simply

no support for the defendant’s assertion that he was entitled to the witnesses’s statements

prior to the trial.

III. Jury Instruction on Prior Convictions

The defendant next contends that the trial court erred by failing to provide an

instruction to the jury that it could consider the defendant’s prior convictions only for

determining the defendant’s credibility. The State asserts that the defendant has waived

consideration of this issue by failing to support his claim with argument, citation to

authorities, or citation to the record; by failing to lodge a contemporaneous objection to the

jury instructions despite being given the opportunity to do so by the trial court; and by failing

to include the issue in his motion for new trial. Again, we agree with the State.

Rule 26.2 of the Tennessee Rules of Criminal Procedure had its genesis in the United States

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Supreme Court holding in Jencks v. United States, 353 U.S. 657 (1957), wherein the court ruled that a

criminal defendant had the right to inspect prior statements or reports by government witnesses following

direct examination for use in cross-examination.

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The defendant’s failure to include this issue in his motion for new trial

precludes plenary appellate review of the claim. See Tenn. R. App. P. 3(e) (“[I]n all cases

tried by a jury, no issue presented for review shall be predicated upon error in . . . jury

instructions granted or refused . . . other ground upon which a new trial is sought, unless the

same was specifically stated in a motion for a new trial; otherwise such issues will be treated

as waived.”). Moreover, in view of the defendant’s failure to support his claim with

argument, citation to appropriate authorities, or citations to the record, we will not exercise

our discretion to review the issue for plain error. Tenn. R. App. P. 36(b) (stating that “an

appellate court may consider an error that has affected the substantial rights of a party at any

time, even though the error was not raised in the motion for a new trial” where consideration

of the error is “necessary to do substantial justice”); see also Tenn. Ct. Crim. App. R. 10(b)

(noting that this court will treat as waived those issues unsupported by argument, citation to

authorities, and citation to the record).

IV. Brady Violation

The defendant claims that he is entitled to a new trial because the State failed

to disclose prior to trial that Ms. Berry had been paid for her work as a confidential

informant. Arguing that the evidence was exculpatory, the defendant asserts that the failure

to disclose violated Brady v. Maryland, 373 U.S. 83 (1963). The State contends that there

was no Brady violation because the State did not suppress any evidence favorable to the

accused.

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court

held that “suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id. at 87. “Evidence

‘favorable to an accused’ includes evidence deemed to be exculpatory in nature and evidence

that could be used to impeach the [S]tate’s witnesses.” Johnson v. State, 38 S.W.3d 52,

55-56 (Tenn. 2001) (citing State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995); State v.

Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998); United States v. Bagley, 473 U.S.

667, 676 (1985)).

To prove a Brady violation, a defendant must demonstrate:

(1) that he requested the information (unless the evidence is

obviously exculpatory, in which case the [S]tate is bound to

release the information whether requested or not),

(2) that the State suppressed the information,

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(3) that the information was favorable to the defendant, and

(4) that the information was material.

Johnson, 38 S.W.3d at 56 (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); Walker,

910 S.W.2d at 389). The evidence is deemed material if “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would have

been different.” Bagley, 473 U.S. at 682.

The question is not whether the defendant would more likely

than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a

trial resulting in a verdict worthy of confidence. A ‘reasonable

probability’ of a different result is accordingly shown when the

government’s evidentiary suppression ‘undermines confidence

in the outcome of the trial.’

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). In the case

of a delayed disclosure of exculpatory information, as opposed to a complete failure to

disclose, the inquiry is whether the delay prevented the defense from effectively preparing

for and presenting the defendant’s case. Caughron, 855 S.W.2d at 548 (Tenn. 1993); see

Bagley, 473 U.S. at 682 (failure to respond to Brady request may impair adversary process

because defense “might abandon lines of independent investigation, defenses, or trial

strategies that it otherwise would have pursued”).

In this case, the defendant requested prior to trial that the State reveal the

identity of the confidential informant and provide him with a copy of her criminal record as

well as any agreements between the State and the informant regarding any criminal charges.

The trial court denied his motion. The identity of the informant, Ms. Berry, was revealed

sometime prior to the trial, and Ms. Berry appeared as a witness for the State. Both Ms.

Berry and Agent George testified that Ms. Berry was recruited to become an informant after

she was caught with drug paraphernalia. Both also candidly testified that Ms. Berry had been

paid in her role as an informant and that the Task Force had gone so far as to provide Ms.

Berry financial assistance to relocate to Florida after her identity was discovered. The record

does not support the defendant’s assertion that the State entered into these deals with Ms.

Berry in exchange for her testimony in his trial. Moreover, even if it did, the defendant has

failed to show that he was prejudiced by the delayed disclosure. The defendant thoroughly

cross-examined Ms. Berry regarding the remuneration from the Task Force, and her role as

a paid informant was plainly apparent from her testimony as well as Agent George’s. Under

these circumstances, the defendant is not entitled to relief on this issue.

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V. Sufficiency of the Evidence

Finally, the defendant challenges the sufficiency of the convicting evidence,

claiming that the State failed to establish his identity as the perpetrator. The State contends

that the evidence overwhelmingly supports the defendant’s conviction. We agree with the

State.

We review the defendant’s claim mindful that our standard of review is

whether, after considering the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.

Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings

of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. Winters, 137 S.W.3d at 654.

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must afford the State the strongest legitimate view of the evidence

contained in the record as well as all reasonable and legitimate inferences which may be

drawn from the evidence. Id.

The defendant first claims that the evidence is insufficient because “[t]he

identification testimony of deputy director Tim Miller and the confidential informant[]

Jessica Berry were not sufficiently corroborated.” We would remind the defendant that only

the testimony of accomplices requires independent corroboration. See, e.g., State v. Bane,

57 S.W.3d 411, 419 (Tenn. 2001).

The defendant also asserts that certain testimony at trial “shows that the DTF

may have a video recording of the incident but they decided not to produce it in court

because the identity of the alleged seller may not have been the defendant.” This claim is

completely baseless and unsupported by any evidence from the record. Furthermore, the

absence of any video recording of the drug transaction was communicated to the jury, and

the jury, as was its prerogative, nevertheless chose to accredit the testimony of the State’s

witnesses.

The defendant also contends that the evidence is insufficient because “[t]he

confidential informant was not a credible witness because she was biased.” As we have

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stated repeatedly, our standard of review leaves the determination of witness credibility

squarely within the purview of the jury as the trier of fact. See Cabbage, 571 S.W.2d 835.

In this case, the evidence adduced at trial established that the defendant sold

.7 grams of crack cocaine to Ms. Berry on April 24, 2008. The defendant is not entitled to

relief on this issue.

Conclusion

Because we discern no error in the judgment of the trial court, the judgment

of the trial court is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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