IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 14, 2013

STATE OF TENNESSEE v. SHIRLEY MASON

Appeal from the Circuit Court for Bedford County

No. 17322 Lee Russell, Judge

No. M2012-01891-CCA-R3-CD - Filed August 14, 2013

The defendant, Shirley Mason, appeals her Bedford County Circuit Court jury conviction of

the sale of less than .5 grams of a substance containing cocaine base, claiming that racial

discrimination tainted the jury selection process in her case and that the trial court erred by

refusing to strike the State’s notice seeking enhanced punishment. Discerning no error, we

affirm.

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

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the Court, in which JERRY L. SMITH

and ROBERT W. WEDEMEYER, JJ., joined.

Alicia Napier, Shelbyville, Tennessee, for the appellant, Shirley Mason.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney

General; Charles Crawford, District Attorney General; and Richard A. Cawley, Assistant

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

OPINION

The defendant did not file a complete transcript of her trial as part of the record

on appeal, but we glean the substance of her offense from that portion of the transcript

included in the appellate record. At the defendant’s trial, David Bell testified that he had

known the defendant and her brother, James Mason, for more than 30 years. On May 4,

2011, the siblings came to his house to try to sell him crack cocaine. Mr. Bell said that his

friend John Harris, who lived with him at the time, asked Mr. Bell to obtain crack cocaine

for him. Mr. Bell said that he telephoned Mr. Mason, who had telephoned Mr. Bell on a

previous occasion and asked Mr. Bell to help him “get rid of” some crack cocaine. Mr. Bell
testified that after the defendant and her brother arrived at his residence, he got into the car

with them. He said that he gave Mr. Mason $100, and the defendant, who was in the driver’s

seat, gave him crack cocaine. Mr. Mason then gave Mr. Bell another bag containing “a

handful” of crack cocaine “crumbs” as a reward for bringing his business to Mr. Mason.

After obtaining the cocaine, Mr. Bell went inside his house and gave it to Mr. Harris.

Mr. Bell testified that he did not know that Mr. Harris was working in

conjunction with the drug task force. Mr. Bell identified himself, the defendant, and her

brother from a video recording of the drug transaction.

During cross-examination, Mr. Bell acknowledged that he had been charged

for his role in the drug transaction and stated that he hoped “to be getting some

consideration” in exchange for his testimony.

Shelbyville Police Department and 17th Judicial District Drug Task Force

Officer Shane George testified that on May 4, 2011, he followed Mr. Mason’s car as it

traveled from Mr. Mason’s residence to Mr. Bell’s residence. He then followed the car as

it left Mr. Bell’s residence and eventually effectuated a stop of the vehicle. According to

Officer George, Mr. Mason was driving the car, and the defendant was a passenger. Officer

George discovered cash in Mr. Mason’s pocket during a search of his person and identified

in the cash the $100 provided to the confidential informant for the purchase of crack cocaine.

Officer George testified that he provided the defendant and Mr. Mason with

Miranda warnings and that the defendant agreed to be interviewed. After he had separated

the defendant from Mr. Mason, the defendant told Officer George that she had traveled with

Mr. Mason to Mr. Bell’s residence for the purpose of selling crack cocaine. She admitted

that she sold $100 worth of crack cocaine to Mr. Bell and $30 worth of crack cocaine to

Alfonzo Snipes while at Mr. Bell’s residence. The defendant told Officer George that she

agreed to act as a middle man in the transaction in exchange for crack cocaine for her own

personal use.

The jury convicted the defendant as charged of the sale and delivery of less

than .5 grams of cocaine, and the trial court merged the jury verdicts into a single conviction,

for which it imposed a Range II sentence of nine years’ incarceration. Following the denial

of her timely but unsuccessful motion for new trial, the defendant filed a timely notice of

appeal.

In this appeal, the defendant contends that the State exercised a peremptory

challenge to excuse a potential juror “who was fairly light skinned but could possibly have

been of the same race as” the defendant in the absence of “any legitimate purpose.” She says

-2-
that because that juror did not provide any response during voir dire that would have

occasioned his being excused, “the purpose for excusing him was racially motivated.” The

defendant also asserts that the trial court erred by denying her motion to strike the State’s

notice seeking enhanced punishment. Specifically, she contends that the notice should have

been stricken because it was filed less than 10 days before the scheduled trial date. She

admits, however, that the trial was continued for other reasons. The State contends that the

defendant has waived our consideration of both these issues by failing to file an adequate

record on appeal.

That portion of the transcript made part of the appellate record does not include

the trial court’s ruling on the defendant’s motion to strike the enhanced sentencing notice,

the trial court’s order continuing the defendant’s trial from March to May 2012, the voir dire

1

of the jury, or the sentencing hearing. The appellant bears the burden of preparing an

adequate record on appeal. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). If the

appellant fails to file an adequate record, this court must presume the trial court’s rulings

were correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993).

Without the transcripts outlined above, we cannot evaluate either the defendant’s claim of

racial discrimination during the jury selection process or the trial court’s refusal to strike the

enhanced sentencing notice. As such, we must presume that the trial court ruled correctly

with regard to both issues.

Additionally, the defendant apparently waived her claim regarding jury

selection by failing to contemporaneously challenge the State’s use of its peremptory

challenge. See State v. Bell, 759 S.W.2d 651, 654 (Tenn. 1988) (holding that “objections to

the use of peremptory challenges should be contemporaneous, while the circumstances of the

occurrence are fresh in the minds of all involved, so as to enable the trial judge to make an

appropriate ruling”); see also Tenn. R. App. P. 36(b) (“Nothing in this rule shall be construed

as requiring relief be granted to a party responsible for an error or who failed to take

whatever action was reasonably available to prevent or nullify the harmful effect of an

error.”); see also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver

applies when the defendant fails to make a contemporaneous objection); State v. Jenkins, 733

S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn.

Crim. App. 1987). In any event, the defendant does not mention in her brief any

contemporaneous challenge to the jury or the ruling of the trial court on any such objection.

We note that the continuance of the defendant’s trial for nearly two months likely cured any issue 1

arising fromthe late-filing of the enhanced sentencing notice. See Tenn. R. Crim. P. 12.3, Advisory Comm’n

Cmts (“[T]he [S]tate may provide notice in less than ten (10) days but the defendant is entitled to a

continuance to rechart a course of action. If the defendant does not request a continuance, the written notice

shall be valid.”).

-3-
She also waived our consideration of this issue by failing to raise the issue in her motion for

new trial. 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 . . . [any] 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.”); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding

that a defendant relinquishes the right to argue on appeal any issues that should have been

presented in a motion for new trial but were not raised in the motion); State v. Dodson, 780

S.W.2d 778, 780 (Tenn. Crim. App. 1989).

Accordingly, the judgment of the trial court is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

-4-