# FILED
March 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1997
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9604- CC-00167 ) Appellee, ) ) HAMBLEN COUNTY VS. ) ) HON. JAMES EDWARD BECKNER EDDIE L.HOWARD, ) JUDGE ) Appe llant. ) (Direct Appeal -

Sale of 1⁄2 gram or ) more of Cocaine)

FOR THE APPELLANT : FOR THE APPELLEE : PAUL G. WHETSTONE, P.C. JOHN KNOX WALKUP 502 North Jackson Str eet Attorney Generaland Reporter Morristown, TN 37814 TIMOTHY F. BEHAN Assistant Attorney General 425 Fi fth Avenu e N. Nashvill e, TN 37243 C. BERKELEY BELL Distri ct Attor ney General JOHN DUGGER Assistant Distri ct Attor ney 510 Allisto n St. Morristown, TN 37814

OPINION FILED ________________________ AFFIRMED; SENTENCE MODI FIED JERRY L . SMI TH, J UDGE-2- 

## OPINION On November 29, 1995, a Ham blen C ounty jury con victed A ppella nt Edd ie L. Howard, Jr., of four coun ts of sel ling .5 or mor e grams of a Sch edule II controll ed substance. Af ter a sentenc ing hearingon t he s ame day, the trial court imposed a sentence of nine years for each convic tion, with t

wo of the sentences to be served consecut ively . Appellant challenges bot h his conv ic tions a nd his sentences, raising t he following issues: 1) wheth er the S tate es tablish ed a p roper chain of custody for thecocaine that was i ntroduced int o evidence; 2) whether the t rial court err ed when it admitted audio tapes, video tapes, and transcri pts into

evidence; 3) whether the trial c ourt er red wh en it faile d to inc lude c ertain ju rors in Appellant’ s venire; 4) whether the r

eferral to Appellant

as a “deale r” by a witne ss for the S tate prejud iced A ppella nt to the extent th at he d id not re ceive a fair trial; 5) whether t he trialcourt imposed excessive sentences; and 6) whether the t rial cour t erred when it order

ed two of thesentences to run consecu tively. After a review of therecord, we af firm thejudgm ent of the tria l court but m odify the se ntenc es to ru n con curren tly

I. FA CTS

Detective Wayne Mize of the Morri stown, Tennessee Police Department testif ied that on April 21, Apr il 24, Apr il 26, and May 5 , 19 95, he a nd s ome other police officer

s made au dio and video recordings of tr ansactions in which Appellant

sold cocaine base to poli ce informant Connie C ervino dur ing an undercover

operation. Mize test ified that before each of the four t ransactions, police officer

s would enter Cervino’s apartment, give Cervino $200. 00, and then set up an d turn o n aud io and video recor ding devices . The officer s would then-3-

positi on th em selves outs ide of Cervi no’s apartment in order to photograph Appellant

as he entered and ex ited the a partment. When the officers le ft the ap art ment, Cervino would call Appel lant and ask hi m to deliver cocaine to her apartm ent. When Appellant arri ved, he would put the cocaine on t he coffee table and Cervino wou ld pay him $2 00.00. After A ppellant left t he apartment, t he officers would wait for fi ve to ten minutes and then would re enter the apartm ent. Either Detective Mize or Offi cer Dan Cox would then take posses sion of th e cocaine . The office rs would then turn off the reco rding de vices.

II.CHAIN OF CUSTODY
Appellant

contends that

the tri al court s hould have g ranted his motion for judgment of acquittal beca use th e State fai led to establish a pr oper chain of custodyfor the cocaine that was introduce d into evidence. Sp ecifically, Appellant cla imsthat a proper

chain of cust

ody was not esta blishe d because the proof shows thatCervin o had “multip le opp ortunitie s” to “tam per with [the] evid ence in any mann er [that] she pl eased ” before th e police o fficers took posse ssion of it. We disagree.

Before tangibl e evidence may be i ntroduced, t he party of fering t he evidence must either c all a witn ess w ho is a ble to identif y the evidence or must establish an unb roken c hain of cu stody. State v. Holloman , 835 S.W.2d 42, 46 (Tenn. Crim . App. 1 992). H owev er, “[t]he identity o f tangib le evidence need not be proven beyond all possibility of d oubt, an d all poss ibility of tampering need not be excluded.” Id. Rather, “[i]t is sufficie nt if the fa cts est ablish a reas onab le
assurance of the identity of the evidenc e.” State v. Woods , 806 S.W.2d 205, 212-4-

(Tenn. Crim . App. 19 90). “Whether the r equired chai n of custody has been sufficie ntly establi shed to justif y the admission of evidenceis a matter committed to the sound discr

etion of t he trialcourt, and t he court’s determinati on will not be overturnedin the a bsence of a clearly m istaken e xercise o f that discre tion.” Holloman , 835 S.W.2d at 46.
Appellant

does not ch alleng e the c hain of custody for the cocaine after t he ti me that Detect ive Mize and Officer Cox to ok possession of it. Instead, Appellant contends that the c hain of custody was not established because Cervino di d not testify at tri al and because the video tapes of the four t ransactions show that Cervino had multipl e opportunit ies to tamper with the cocaine befo re Mize and Cox took possessi on of it. We have revi ewed the four vide o tape s, and we co uld
see no instance i n which Cervi no appeared to ta mper with the ev iden ce . Althoug h Cervino di d not test ify at trial , her li nk in the chai n was suffi cient l y establi shed by the vi deo and audio tapes, the testi mony of Detective Mize, and the testimony of

Officer Cox. See id. (stating that un availab le witne ss’ link in the chain was suff icient ly establ ished by testimony of ot her witnesses ). This i ssue has no merit.

III . ADMISSIBI LITY OF TAPES AND TRANSCRIPTS

A ppellant conte nds th at the tria l court e rred w hen it a dmitte d the a udio tapes, video tapes, and tran scripts into evidence. Specifical ly, Appel lant argues thatbecause the tapes a nd transcri pts contai n statements made by Cervino and Cervino did not testify at t rial, admission of t his evidence violated his ri ght to1 The Sixth Amendment provides t hat “[i]n allcriminal pr osecutions, the accused shall enjoy t he right to . . . be con fronted w ith the witnes ses ag ainst him .” U.S. Co nst. am end. VI. Sim ilarly, Article I, Section 9 pro

vides “[ t]hat i n all criminal prosecu tions, the accused hath the right to . . .meet the witnesses face to face. ” Tenn. Const. ar t I, § 9

. -5- confrontat ion under the Six th Amendment to the United States Constitut ion and Articl e I, Secti on 9 of the Tennessee Const ituti on. 1 We disagree.

In State v. Jones , 598 S. W. 2 d 209, 223 (Tenn. 1980) , the Tennessee Supr eme Co urt held that an accused’s const ituti onal right to confront

the witnessesagainst hi m was not viol ated by t he introduct ion of audi o taped conversati ons between the accused and a n inform ant wh o did n ot testify a t trial. The supreme court stated that tape record ings and compared transcr ipts are ad missible and may be presented in evidence by any wit ness who was pr es ent du ring the ir recording o r wh o monitored the conversati ons, if he was so situated and circumstanced that he was i n a positi on to ident ify t he declarant wi th certainty, and p rovide d his te stimo ny in wh ole , or in pa rt, comp orts with other rul es of evidence. Jones , 598 S.W .2d at 223
.

In this cas e, De tectiv e Miz e testified that h e could ident ify Appel lant and Cervino in all four vi deo tapes. Miz e al so tes tifie d that he had monitored the audio recording of

the transac

tions on Apri l 24, Apr il 26, and May 5 while t hey
were occurring a nd he had rev iewe d the transc ripts of those recordi ngs and determined that they were accurate. In additi on, Offi cer Cox test ified t hat he had monitored the audio re cording on April 21 and hehad reviewed t he transcri pt and deter mined t hat it was accurate. Further, Officer Rick Harmon testi fied that he photographed Appellant when he entere d and exited C ervino ’s apa rtmen t on all fouroccasions and heide ntified A ppella nt in the photo graph s. Only after this2 Articl e I, Section 8 provides “[t]hat no man shall be taken or imprisoned . .. but by the judgment of his peers. ” Tenn. Const. ar t I, § 8

. -6- testimony

was g iv en were t he juro rs allow ed to lis ten to p ortions of the a udio tapes while they simultaneou sly watched t he soundless vi deo tapes of t he four tr ansac ti ons. We conclude that thi s procedure sat isfiedthe requir ements set forth in Jones . More over, C ervino ’s statem ents we re not offer ed or inten ded to be subs tantive eviden ce. Ind eed, C ervino ’s state men ts are c omp letely i n signif icantexcept to the exten t that they pu t Appella nt’s record ed statem ents in context. I n effect, Cervi no was simply not a “witnessagainst” Appellant, and thus, the right to c onfronta tion is not im plicate d. See Stat e v. George Harless , No. 0 3C01-9203-CR-00105, 1 993 WL 305786, at *3 (Tenn. Cri m. App., Knoxvi lle, Dec. 6, 1993). Appel lant’s right to confron tat ion wa s fully sa tisfied b y his thorough cross-examinat ion of Detective Mize , Officer Cox, and Officer Harmon. See id. This issu e has n o merit.

IV. JURY SEL ECTION
Appellant

conten ds that the trial court erre d when it denied h is motion to have jury pan el o ne i ncluded in hi s venire. Specifically, Appellant ar gues that because he is Afri can-American and panel one w as the only panel that included African-American mem bers, th e trial co urt’s failur e to purposeful ly incl ude panel
one in Appella nt’s veni re deprived him of his right under Articl e I, Secti on 8 of the Tennessee Constitut ion 2 to be tri ed by a jury of his peer

s. We disagree.

The record indi cates that when Appellant

made his rather

unique motion, the trialcourt stated that to p urposefully include the pan el contai ning Afri can--7-

Americans would be justas ba d as to purpo sefully e xclude the pa nel. Thus, the trialcourt concl ud ed that the better p ractice would be to p ut the n umb ers of a ll perspective jury panel s in a box and then ha ve the clerk draw the numbers at random. Jury panelone was not selected.

We conclude that

the tri al court’ s pr oced ure in s electin g the ju ry in this
case did not vi olate Appell ant’s ri ght to be tried by a jury of his peer

s in any way whatsoeve r. Indeed, Tennessee cour ts have repeatedly h eld that a lthough “juri es must be drawn from a sour ce fairly representative of the community[ ,] we impose no requ iremen t that peti t jur ies actual ly chosen must mir ror the
comm unity and reflect the various distinctive group s in the population .” State v. Nelson , 603 S.W.2d 158, 160 ( Ten n. Crim . App. 1980) ( quoting Taylor v. Louisiana , 419 U .S. 522, 5 38, 95 S .Ct. 692, 7 02, 42 L .Ed.2d 6 90 (197 5)); see also Harvey v . State , 749 S.W.2d 47 8, 481 (Tenn. Crim. A pp. 198 7). In short, there is no constitutionalguarantee requi ring a defendant be t ried by a jury wholly
or parti ally

composed of i ndivi duals of his or her own race. Harvey , 749 S.W.2d at 481 (citi ng Wh eeler v. Sta te , 539 S.W.2d 812 (Tenn. Crim . App. 1 976)) . This issue ha s no m erit.

V. IMPROPER COMMENT BY A STATE WI TNESS
Appellant

contends that

he was prejudi ced to the poi nt that he d id n ot receive a fair trial when Officer H armon referred to Appellant as a “dealer” during his test imony. We disagree.-8- The record indicates that duri ng the direc t examinati on of Offi cer Harmon, the foll owing coll oquy occurred:

[MR. DUG GER ]: Appro ximately h ow long did [App ellant] stay in t he apartm ent? You were outside watching him go in a nd out; how l ong did he stay? [OFFICER HARMON]: Just a couple minutes. Jus t like t he rest of the dealers that we dealt with— MR. W HETS TON E: Objection, you r Honor. THE COU RT: S ustained . Be care ful.
Harm on’s statement was undoubtably improper . Howev e r, we concl ude thatAppe llant is no t entitle d t o a new trialbecause of it . In State v. S mith , 893 S.W.2d 908, 92 3 (Ten n. 1994 ), t he Tenn essee Supre me C ourt held that a witness’ improper reference to the defendant’ s prior j ail ti me did not enti tle the defendantto a ne w trial b ecause t he trialcourt had gi ven a curative instruction and in addit ion, the d efenda nt could not have been prejud iced by the rem ark given the ove rwhelm in g proof of guil t. Simil arly, in State v. Baker , 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987), thi s Court held t hat a witnes s’ improper reference to the accused’ s prior criminal record d id not entitle th e accu sed to a new trialbecause the trial court had given acurative instruc tion and f urther, the evidence in the record overwhel mingly establ ished the gui lt of t he a cc used. Although these decisions wer e based in part on the givi ng of curative instructions by the tri al courts , we note that Appellant f

ailed to ask for a cur

at ive ins tructi on in this case. Further, we note that Harmon’s brief comment was not solici ted by the State an d it was no t repeate d. Moreo ver, g iven the overwhelming pr oof of Appe llant’s guilt thatwas p resen ted at tria l, any error w as clearly h armles s. See Tenn. R. App. P. 36(b)(stati ng that eve n if app ropria te, relief s hall not be granted “unless, consideri ng the whole record, erro r invol ving a substantial right m ore probab ly than no t affected th e judgm ent”). This issue ha s no m erit.-9- VI. LENGTH OF SE NTENCES
Appellant

contends that

the tri al court erron eou sly sentenced him to a longer term than he deserves for each of hi s four convi ctions. We disagree.

“When reviewing senten cing issu es . . . incl uding the grant ing or deni al of probation and the lengt h of sentence, the appellate co urt shall conduc t a de novo review on the record of such issues . Such re vie w shall be conducted with a presumption that the determinati ons made by the co urt from which the ap peal is t aken ar e correct. ” Tenn. Code Ann. § 40-35-401(d) (1997). “However, t he presum pti on o f correc tness which acco mpa nies th e trial co urt’s ac tion is conditi oned upon th e affirma tive show ing in the re cord tha t th e tri al court considered the sentencing principl es and all rele vant facts a nd circum stance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduct ing our review, we must consider al l the e viden ce, the presentence report, the sentencing princi ples, the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s statements, the nature and character of t he offense, and the defendant ’s potent ial forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); Ashby , 82 3 S.W.2d at 169. “The defendan t has the bur den of demonstratingthat the sentenc e is imprope r.” Id. Becau se the record in this
case indica tes tha t the trial c ourt pr operly considered t he sentencing principl es and all r elevan t facts a nd circ ums tance s, our re view is d e novo wit h a presumption of correctness.

In this case, App ellant was con victed of four coun ts of selling .5 or more gra ms of a Schedule I I control led substance, a Class B felony. See Tenn. Code-10-

Ann. § 39-1 7-417(c)(1) (Supp. 1998). The sentence for a Range I offender convicted of a Cl ass B fel ony is between e ight and t welve years . Tenn. Code Ann. § 40-35-112(a) (2) (1997). When both enhancementand mitigating fac tors
are applicabl e to a senten ce, the court i s directe d to begin wi th the mini mum sentence, enhance the sentence within t he r ang e as appropriate for the
e nhancement factors, and then reduce t he sentence wit hin the range a s appropriate for t he mitigating factors. Tenn. C ode Ann . § 40-35-210 (e) (1997).

In sentencing Appel lant to a term of nine y ears for each convicti on, the trial court determined that enhancement factor ( 1) applied because Appel lant had a history of crimina l conviction s or beh avior in add ition to th ose neces sary to establish the appropri ate sentenci ng r ange. See Tenn. Code Ann. § 40-45- 11 4(1) (1997). The trial court also determ ined that none of the enum era te d mitigating factors of T ennes see Co de Ann otated se ction 40-3 5-113 a pplied.
Initially, Appe ll ant cont ends that t he trialcourt err ed when it appl ied enhancement factor

(1). We disagree. The record indi cates that Appellant

had previousconvicti ons fo r drivi ng without a driver’ s license i n Tennessee and for retail theft i n Illi noi s. Th us, the trial court properly

applied t his enhancement factor.
Appellant

also contends t hat the trial court should have appl ied mitigati ng factor (1) because his criminal co nduc t neither caused nor threatened serio us bodily injury. See Tenn. Code Ann. § 40-3 5-113(1) (199 7). Howeve r, this Court has held th at this fa ctor is in applic able in case s in v olving t he sale of cocai ne. State v. Keel , 882 S.W.2d 410, 422 (Tenn. Cr im. App. 1994). Even if t his factor-11-

had been applied, it would have been entitled to little we ight. See State v. Hoyt Edward Carro ll , No. 03C01-9607-CC-00254, 1997 WL 457490, at *4 (Tenn. Crim App., Knoxvill e, Aug. 12, 1997) (hol ding that in cases involv ing drugs, mitigati ng factor (1) is entitled to little weight).
Appellant

further conten ds t hat the trial court should have appl ied mitigati ng factor (13) becau se he is th e father o f an infant s on. See Tenn. Code Ann. § 40-35-113(13) (1997). We are unpersuaded that the mere fact that Appellant

has fathered a child i s entitl ed to anymitigating weight. See State v. John Allen Chap ma n , No. 01C01-9604-CC-00137, 1997 WL 602944, at *21 ( Tenn. C rim. App., Nashvill e, Sept. 30, 1997) (“We find no nex us between paternityship and mitigation of punish ment.”).

In our de novo re view, w e hold that one enhancement factor and no mitigati ng factor

s apply to Appel lant’ s sentences. Thus, we hold that a sentence of nine yea rs for ea ch of A ppella nt’s co nviction s is entir ely app ropria te in this
case.

VII.CONSECUTIVESENTENCING
Appellant

conten ds that the trial court e rred whe n it orde red two of his sentences to be s erved cons ecutiv ely. On th is issue w e mus t agree w ith Appe llant.

In gene ral, con secu tive sen tencin g ma y be im pose d in the discr etion of the trial court up on a de termina tion that on e or mo re of the follo wing criteria exist:3 In State v. Wilkerson , 905 S.W .2d 933, 937–38 (Ten n. 1995), the Tennesse e Suprem e Court imposed two ad ditional requirements for consecutive sentencing— the court must find that consecu tive sentences are reaso nably related to the severity of the offenses com mitted and that consecutive sentences are necessary to protect

the publi c from further criminal conduct . At this time, it is unsett led whether Wilkerson applies t o all sev

en of the statutory cat egories for

consecutive se ntencing or only the “dange rous off ender” c ategory. See State v. David Keit h Lane , No. 03C01-9607-CC-00259,1997 WL 33206 1, at *6 (Te nn. Crim . App., Kn oxville, June 18, 1997 ), perm. app. granted , (Tenn. 1998).Our determinati on that consecut ive sentences are not appropriate i n this case is the same under eit her interpr etatio n. -12- (1) The defendant is a professi ona l crimi nal who has knowingly devoted himself to criminal acts as a major s ource of livelihood; (2) The defen dant is an offe nder w hose record of crim inal ac tivity is extensive; (3) The defen dant is a dangerous mentall y abnormal person so declar ed by a com peten t psych iatrist wh o con clude s as a r esult of an investigati on prior to se nte ncing that

the defendant ’s cri minal conduct has been characteri zed by a pa ttern of r epetit ive o r comp ulsive beh avior with heedless indiffer

ence to consequences; (4) The defendantis a dangerous offender whose beha vior indic ates little or no regard for

human life, and no hesitat ion about committ ing a cr ime in which the ri sk to human lif e is high; (5) The defendantis c onvicted of two (2) or

more statutor

y offenses involv ing sexual abuse of a minor with considerati on of the aggrav a ting circumstancesari sin g fr om t he relati onship between t he defendant and victim or victims, the time spa n of defenda nt’s undetected sexual activity, the nature a nd sco pe of the se xual ac ts and the exte nt of the residu al, physical and mental damage to the victi m or victims; (6) The defendanti s sentenced for an offense committed while on probation; or (7) The defend ant is sen tenced for crimina l contem pt.
Tenn. C ode Ann . § 40-35-115 (b) (1997). 3

In d etermini ng that two of Appellant’ s sentences shoul d be served
consecu tively, the trialcourt found that Appell ant is “a professiona l crimi nal who has knowingly dev

oted himself

to crimi nal acts as a maj or source of livelihood.” The trial court

stated that it

based this finding on evi dence that du ri ng t he t ime period when the four of fenses at i ssue in thi s case were committed, almost allof Appe llant’s incom e cam e from th ese fou r drug tran sactions
.-13- We conc lude th at the re cord s imply d oes n ot sup port the trial court’ s findingthat Appe llant is “a professi onal crimi nal who has knowingly devoted hims elf to crimina l acts as a major source of l iveli hood.” As prev iously stated, App ellant’s prior criminal record consists only of on e prior conv iction forretai l theft in Illi nois and one or pos sibly two convic tions fo r driving withou t a licen se in Tennessee. The record also indicates that in committing these offenses, Ap pellant

mere ly obtain ed po sses sion o f a bas ketba ll and a batting glo ve. I t goes without

saying that

these two i tems cannot be consi dered a major source of Appel lant’s

livel ihood by any st retch of t he imaginati on. Further , there i s abso lutely no evidence i n the record t hat Appellant has ever obtai ned anything of value thr

ough any other criminal offenses for which he was not convi cted. The trialcourt apparent ly concl uded thatbecause Appellant was only earni ng $25–50 per week at his jo b, App ell ant must have been obtaining his livelihood almost entirely thro ugh cri mina l activity. W hile this theory may w ell have been true, it remains only a theor y because it

was not supported b y an y evidence i n the record. In short, we hold tha t the record doe s not suppo rt a findi ng that Appell ant is a “professionalcriminal” such as to warr ant consecutive sentences.
According ly, Appellant’ s sentences are modi fied to pr ovide for

concurrent sentencing for all four convi ctions i n this case. In all other respects, the judgment of the trial court

is aff irmed.

____________________________________

JERRY L . SMI TH, J UDGE-14-

CONCUR:

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ THOMAS T. WOODALL, J UDGE