FILED

March 12, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9604-CC-00167

)

Appellee, )

) HAMBLEN COUNTY

VS. )

) HON. JAMES EDWARD BECKNER

EDDIE L. HOWARD, ) JUDGE

)

Appellant. ) (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 Street Attorney General and Reporter

Morristown, TN 37814

TIMOTHY F. BEHAN

Assistant Attorney General

425 Fifth Avenue N.

Nashville, TN 37243

C. BERKELEY BELL

District Attorney General

JOHN DUGGER

Assistant District Attorney

510 Alliston St.

Morristown, TN 37814

OPINION FILED ________________________

AFFIRMED; SENTENCE MODIFIED

JERRY L. SMITH, JUDGE
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OPINION

On November 29, 1995, a Ham blen County jury convicted Appellant Eddie

L. Howard, Jr., of four counts of selling .5 or more grams of a Schedule II

controlled substance. After a sentencing hearing on the same day, the trial court

imposed a sentence of nine years for each conviction, with two of the sentences

to be served consecutively. Appellant challenges both his convictions and his

sentences, raising the following issues:

1) whether the State established a proper chain of custody for the cocaine

that was introduced into evidence;

2) whether the trial court erred when it admitted audio tapes, video tapes,

and transcripts into evidence;

3) whether the trial court erred when it failed to include certain jurors in

Appellant’s venire;

4) whether the referral to Appellant as a “dealer” by a witness for the State

prejudiced Appellant to the extent that he did not receive a fair trial;

5) whether the trial court imposed excessive sentences; and

6) whether the trial court erred when it ordered two of the sentences to run

consecutively.

After a review of the record, we affirm the judgment of the trial court but modify

the sentences to run concurrently

I. FACTS

Detective Wayne Mize of the Morristown, Tennessee Police Department

testified that on April 21, April 24, April 26, and May 5, 1995, he and some other

police officers made audio and video recordings of transactions in which

Appellant sold cocaine base to police informant Connie Cervino during an

undercover operation. Mize testified that before each of the four transactions,

police officers would enter Cervino’s apartment, give Cervino $200.00, and then

set up and turn on audio and video recording devices. The officers would then
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position themselves outside of Cervino’s apartment in order to photograph

Appellant as he entered and exited the apartment. When the officers left the

apartment, Cervino would call Appellant and ask him to deliver cocaine to her

apartment. When Appellant arrived, he would put the cocaine on the coffee table

and Cervino would pay him $200.00. After Appellant left the apartment, the

officers would wait for five to ten minutes and then would reenter the apartment.

Either Detective Mize or Officer Dan Cox would then take possession of the

cocaine. The officers would then turn off the recording devices. 

II. CHAIN OF CUSTODY

Appellant contends that the trial court should have granted his motion for

judgment of acquittal because the State failed to establish a proper chain of

custody for the cocaine that was introduced into evidence. Specifically, Appellant

claims that a proper chain of custody was not established because the proof

shows that Cervino had “multiple opportunities” to “tam per with [the] evidence in

any manner [that] she pleased” before the police officers took possession of it.

We disagree.

Before tangible evidence may be introduced, the party offering the

evidence must either call a witness who is able to identify the evidence or must

establish an unbroken chain of custody. State v. Holloman, 835 S.W.2d 42, 46

(Tenn. Crim. App. 1992). However, “[t]he identity of tangible evidence need not

be proven beyond all possibility of doubt, and all possibility of tampering need not

be excluded.” Id. Rather, “[i]t is sufficient if the facts establish a reasonable

assurance of the identity of the evidence.” State v. Woods, 806 S.W.2d 205, 212
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(Tenn. Crim. App. 1990). “Whether the required chain of custody has been

sufficiently established to justify the admission of evidence is a matter committed

to the sound discretion of the trial court, and the court’s determination will not be

overturned in the absence of a clearly mistaken exercise of that discretion.”

Holloman, 835 S.W.2d at 46.

Appellant does not challenge the chain of custody for the cocaine after the

time that Detective Mize and Officer Cox took possession of it. Instead, Appellant

contends that the chain of custody was not established because Cervino did not

testify at trial and because the video tapes of the four transactions show that

Cervino had multiple opportunities to tamper with the cocaine before Mize and

Cox took possession of it. We have reviewed the four video tapes, and we could

see no instance in which Cervino appeared to tamper with the evidence.

Although Cervino did not testify at trial, her link in the chain was sufficiently

established by the video and audio tapes, the testimony of Detective Mize, and

the testimony of Officer Cox. See id. (stating that unavailable witness’ link in the

chain was sufficiently established by testimony of other witnesses). This issue

has no merit.

III. ADMISSIBILITY OF TAPES AND TRANSCRIPTS

Appellant contends that the trial court erred when it admitted the audio

tapes, video tapes, and transcripts into evidence. Specifically, Appellant argues

that because the tapes and transcripts contain statements made by Cervino and

Cervino did not testify at trial, admission of this evidence violated his right to 
1

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the

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 provides “[t]hat in all criminal prosecutions, the accused hath the right to . . . meet the witnesses

face to face.” Tenn. Const. art I, § 9.

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confrontation under the Sixth Amendment to the United States Constitution and

Article I, Section 9 of the Tennessee Constitution.1 We disagree.

In State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980), the Tennessee

Supreme Court held that an accused’s constitutional right to confront the

witnesses against him was not violated by the introduction of audio taped

conversations between the accused and an inform ant who did not testify at trial.

The supreme court stated that

tape recordings and compared transcripts are admissible and may be

presented in evidence by any witness who was present during their

recording or who monitored the conversations, if he was so situated and

circumstanced that he was in a position to identify the declarant with

certainty, and provided his testimony in whole, or in part, comports with

other rules of evidence.

Jones, 598 S.W .2d at 223. 

In this case, Detective Mize testified that he could identify Appellant and

Cervino in all four video tapes. Mize also testified that he had monitored the

audio recording of the transactions on April 24, April 26, and May 5 while they

were occurring and he had reviewed the transcripts of those recordings and

determined that they were accurate. In addition, Officer Cox testified that he had

monitored the audio recording on April 21 and he had reviewed the transcript and

determined that it was accurate. Further, Officer Rick Harmon testified that he

photographed Appellant when he entered and exited Cervino’s apartment on all

four occasions and he identified Appellant in the photographs. Only after this
2Article I, Section 8 provides “[t]hat no man shall be taken or imprisoned . . . but by the judgment

of his peers.” Tenn. Const. art I, § 8.

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testimony was given were the jurors allowed to listen to portions of the audio

tapes while they simultaneously watched the soundless video tapes of the four

transactions. We conclude that this procedure satisfied the requirements set

forth in Jones. Moreover, Cervino’s statements were not offered or intended to

be substantive evidence. Indeed, Cervino’s statements are completely

insignificant except to the extent that they put Appellant’s recorded statem ents

in context. In effect, Cervino was simply not a “witness against” Appellant, and

thus, the right to confrontation is not implicated. See State v. George Harless,

No. 03C01-9203-CR-00105, 1993 WL 305786, at *3 (Tenn. Crim. App., Knoxville,

Dec. 6, 1993). Appellant’s right to confrontation was fully satisfied by his

thorough cross-examination of Detective Mize, Officer Cox, and Officer Harmon.

See id. This issue has no merit.

IV. JURY SELECTION

Appellant contends that the trial court erred when it denied his motion to

have jury panel one included in his venire. Specifically, Appellant argues that

because he is African-American and panel one was the only panel that included

African-American members, the trial court’s failure to purposefully include panel

one in Appellant’s venire deprived him of his right under Article I, Section 8 of the

Tennessee Constitution2

 to be tried by a jury of his peers. We disagree.

The record indicates that when Appellant made his rather unique motion,

the trial court stated that to purposefully include the panel containing African-
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Americans would be just as bad as to purposefully exclude the panel. Thus, the

trial court concluded that the better practice would be to put the numbers of all

perspective jury panels in a box and then have the clerk draw the numbers at

random. Jury panel one was not selected.

We conclude that the trial court’s procedure in selecting the jury in this

case did not violate Appellant’s right to be tried by a jury of his peers in any way

whatsoever. Indeed, Tennessee courts have repeatedly held that although

“juries must be drawn from a source fairly representative of the community[,] we

impose no requirement that petit juries actually chosen must mirror the

comm unity and reflect the various distinctive groups in the population.” State v.

Nelson, 603 S.W.2d 158, 160 (Tenn. Crim . App. 1980) (quoting Taylor v.

Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975)); see

also Harvey v. State, 749 S.W.2d 478, 481 (Tenn. Crim. App. 1987). In short,

there is no constitutional guarantee requiring a defendant be tried by a jury wholly

or partially composed of individuals of his or her own race. Harvey, 749 S.W.2d

at 481 (citing Wheeler v. State, 539 S.W.2d 812 (Tenn. Crim. App. 1976)). This

issue has no merit.

V. IMPROPER COMMENT BY A STATE WITNESS

Appellant contends that he was prejudiced to the point that he did not

receive a fair trial when Officer Harmon referred to Appellant as a “dealer” during

his testimony. We disagree.
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The record indicates that during the direct examination of Officer Harmon,

the following colloquy occurred:

[MR. DUGGER]: Approximately how long did [Appellant] stay in the

apartment? You were outside watching him go in and out; how long did

he stay?

[OFFICER HARMON]: Just a couple minutes. Just like the rest of

the dealers that we dealt with—

MR. WHETSTONE: Objection, your Honor.

THE COURT: Sustained. Be careful. 

Harmon’s statement was undoubtably improper. However, we conclude

that Appellant is not entitled to a new trial because of it. In State v. Smith, 893

S.W.2d 908, 923 (Tenn. 1994), the Tennessee Supreme Court held that a

witness’ improper reference to the defendant’s prior jail time did not entitle the

defendant to a new trial because the trial court had given a curative instruction

and in addition, the defendant could not have been prejudiced by the remark

given the overwhelm ing proof of guilt. Similarly, in State v. Baker, 751 S.W.2d

154, 164 (Tenn. Crim. App. 1987), this Court held that a witness’ improper

reference to the accused’s prior criminal record did not entitle the accused to a

new trial because the trial court had given a curative instruction and further, the

evidence in the record overwhelmingly established the guilt of the accused.

Although these decisions were based in part on the giving of curative instructions

by the trial courts, we note that Appellant failed to ask for a curative instruction

in this case. Further, we note that Harmon’s brief comment was not solicited by

the State and it was not repeated. Moreover, given the overwhelming proof of

Appellant’s guilt that was presented at trial, any error was clearly harmless. See

Tenn. R. App. P. 36(b) (stating that even if appropriate, relief shall not be granted

“unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment”). This issue has no merit.
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VI. LENGTH OF SENTENCES

Appellant contends that the trial court erroneously sentenced him to a

longer term than he deserves for each of his four convictions. We disagree.

“When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presum ption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circum stances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhancing and mitigating factors, argum ents of counsel, the defendant’s

statements, the nature and character of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of

demonstrating that the sentence is improper.” Id. Because the record in this

case indicates that the trial court properly considered the sentencing principles

and all relevant facts and circumstances, our review is de novo with a

presumption of correctness.

In this case, Appellant was convicted of four counts of selling .5 or more

grams of a Schedule II controlled substance, a Class B felony. See Tenn. Code
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Ann. § 39-17-417(c)(1) (Supp. 1998). The sentence for a Range I offender

convicted of a Class B felony is between eight and twelve years. Tenn. Code

Ann. § 40-35-112(a)(2) (1997). When both enhancement and mitigating factors

are applicable to a sentence, the court is directed to begin with the minimum

sentence, enhance the sentence within the range as appropriate for the

enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e) (1997).

In sentencing Appellant to a term of nine years for each conviction, the trial

court determined that enhancement factor (1) applied because Appellant had a

history of criminal convictions or behavior in addition to those necessary to

establish the appropriate sentencing range. See Tenn. Code Ann. § 40-45-

114(1) (1997). The trial court also determined that none of the enumerated

mitigating factors of Tennessee Code Annotated section 40-35-113 applied. 

Initially, Appellant contends that the trial court erred when it applied

enhancement factor (1). We disagree. The record indicates that Appellant had

previous convictions for driving without a driver’s license in Tennessee and for

retail theft in Illinois. Thus, the trial court properly applied this enhancement

factor.

Appellant also contends that the trial court should have applied mitigating

factor (1) because his criminal conduct neither caused nor threatened serious

bodily injury. See Tenn. Code Ann. § 40-35-113(1) (1997). However, this Court

has held that this factor is inapplicable in cases involving the sale of cocaine.

State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim. App. 1994). Even if this factor
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had been applied, it would have been entitled to little weight. See State v. Hoyt

Edward Carroll, No. 03C01-9607-CC-00254, 1997 WL 457490, at *4 (Tenn. Crim

App., Knoxville, Aug. 12, 1997) (holding that in cases involving drugs, mitigating

factor (1) is entitled to little weight).

Appellant further contends that the trial court should have applied

mitigating factor (13) because he is the father of an infant son. See Tenn. Code

Ann. § 40-35-113(13) (1997). We are unpersuaded that the mere fact that

Appellant has fathered a child is entitled to any mitigating weight. See State v.

John Allen Chapman, No. 01C01-9604-CC-00137, 1997 WL 602944, at *21

(Tenn. Crim. App., Nashville, Sept. 30, 1997) (“We find no nexus between

paternityship and mitigation of punishment.”).

In our de novo review, we hold that one enhancement factor and no

mitigating factors apply to Appellant’s sentences. Thus, we hold that a sentence

of nine years for each of Appellant’s convictions is entirely appropriate in this

case.

VII. CONSECUTIVE SENTENCING

Appellant contends that the trial court erred when it ordered two of his

sentences to be served consecutively. On this issue we must agree with

Appellant.

In general, consecutive sentencing may be imposed in the discretion of the

trial court upon a determination that one or more of the following 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 public from further criminal conduct. At this time, it is unsettled

whether Wilkerson applies to all seven of the statutory categories for consecutive sentencing or only the

“dange rous off ender” c ategory. See State v. David Keith 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

determination that consecutive sentences are not appropriate in this case is the same under either

interpretation.

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(1) The defendant is a professional criminal who has knowingly devoted

himself to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

(3) The defendant is a dangerous mentally abnormal person so declared

by a competent psychiatrist who concludes as a result of an investigation

prior to sentencing that the defendant’s criminal conduct has been

characterized by a pattern of repetitive or compulsive behavior with

heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little

or no regard for human life, and no hesitation about committing a crime in

which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant’s undetected sexual activity,

the nature and scope of the sexual acts and the extent of the residual,

physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt. 

Tenn. Code Ann. § 40-35-115(b) (1997).3

 In determining that two of Appellant’s sentences should be served

consecutively, the trial court found that Appellant is “a professional criminal who

has knowingly devoted himself to criminal acts as a major source of livelihood.”

The trial court stated that it based this finding on evidence that during the time

period when the four offenses at issue in this case were committed, almost all of

Appellant’s incom e came from these four drug transactions. 
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We conclude that the record simply does not support the trial court’s

finding that Appellant is “a professional criminal who has knowingly devoted

himself to criminal acts as a major source of livelihood.” As previously stated,

Appellant’s prior criminal record consists only of one prior conviction for retail

theft in Illinois and one or possibly two convictions for driving without a license in

Tennessee. The record also indicates that in committing these offenses,

Appellant merely obtained possession of a basketball and a batting glove. It

goes without saying that these two items cannot be considered a major source

of Appellant’s livelihood by any stretch of the imagination. Further, there is

absolutely no evidence in the record that Appellant has ever obtained anything

of value through any other criminal offenses for which he was not convicted. The

trial court apparently concluded that because Appellant was only earning $25–50

per week at his job, Appellant must have been obtaining his livelihood almost

entirely through criminal activity. W hile this theory may well have been true, it

remains only a theory because it was not supported by any evidence in the

record. In short, we hold that the record does not support a finding that Appellant

is a “professional criminal” such as to warrant consecutive sentences.

Accordingly, Appellant’s sentences are modified to provide for concurrent

sentencing for all four convictions in this case. In all other respects, the judgment

of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

JOSEPH M. TIPTON, JUDGE

___________________________________

THOMAS T. WOODALL, JUDGE