# FILED
July 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1998 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9704-CR-00118

) ) Davidson County v. ) ) Honorable J. Randall Wyatt, Jr., J udge ) MELVIN LEWIS PEACOCK, ) (Possession of three hundred g rams or ) more of cocaine for re sale and unlawful Appellant. ) possession of a weapon) For the Appellant : For the Appellee : Mark J. Fishburn John Knox Walkup 100 Thompson Lane Attorney General of Tennessee Nashville, TN 37211 and Lisa A. Naylor Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and Katrin Novak Mill er Assistant District A

ttorney General Washington Square 222 2nd Avenue, North Nashville, TN 37201-1649

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Melvin Lewis Peacock, appeals as of right from his jury convicti ons in Davidson County for possessi on with intent to sell three hundre

d grams or more of a substance containing cocaine, a Class A felony , and for the unlawful possession of a weapon, a Clas s E felony. The trial cour t sentenced the defendant as a Range I, standard offender to tw enty years in the cus

tody of the Department of Correction for the cocaine possession conviction and to a concurrent two-year sentence in the custody of the Department of Correction for the weapon pos session conviction. The trial court ordered the defendant to serve the twenty-year sentence consecu tively to an earl ier sente nce. The defend ant prese nts the f ollowing iss ues for o ur review:

(1) the trial court erred when it denied the defendant’s motion to suppr e ss the evidence seiz ed by the police pursuant t o a search warrant on the

basis that an exact copy of the warrant was not left with the defendant; (2) the trial court err ed in deny ing the defendant’s motion in limine to preclude the state from introducing into evidence five car titles found in a safe; and (3) the trial court erred in permitting the state to recall Curtis Peacock as a witness du ring i ts case- in-chi ef. We affirm the trial court’s judgment of convi ction.

This case involves a search of the defendant’s apartment pursua nt to a search warrant on Dec ember 9, 1994. Upon entering t he apartment, Officer Donegan found three people: (1) the defendant, (2) Curtis Peacock, the defendant’s cousin and roommate, and (3) George Log an, the defendant’s friend and a recent r esident of the apartment. During the sear ch, officers discovered about seven hundred grams of cocaine located in a safe. The officers also found a weapon and undisclos ed amounts of marijuana. Later, on January 25, 1996, five car titles in the def endant’s name were discovered in the safe w hile Officer Donegan was gathering information reg arding the3

safe’s manufacturer and serial numbers pursu ant to a request by the defendant’s attorney.

I. MOTION TO SUPPRESS

The defendant contends that the trial court erred by refusing to suppress the evidence seized from hi s apartment. The defendant submits that the fai lure of the police to leave a copy

of the search warrant w ith him makes the search ill egal and the evidence inadmissible under Rule 41(c), Tenn. R. Cr im. P. The state counters that the officer did in fact give to the defendant a copy of the warrant as required by Rul e 41(c). We agree.
At the suppression hearing , the defendant testified that neither he nor anyone else living

at the defendant’s residence w as given a copy of the s earch warrant executed by Officer Doneg an. He said that he did not see a copy of the search war rant or the inventory li st until copies were forwarded to him by his attorney. The defendant stated that he requested a copy from Officer Donegan and that the officer r eplied that he would get him one. He said that at no point did Officer Donegan read th e search warrant to him, show

it to him, or tell him that a copy would be left at t he residence. The defendant testified that he had been incarc erated since his arrest.
Officer John Donegan testified that he obtained a search warr ant to search the defendant’s residence. He said that upon entering the residence, he found the defendant, Curtis Peacock, and G eorge Logan. Officer Donega n said that once the apartment was secured, the three suspects were gathered together and read the ir rights. He said that the search of the defendant’s premises r evealed about seven hundred grams of cocaine, unspeci fied quantities of marijuana, and a weapon.4 Officer Donegan testified that he obtaine d two copies of the search warrant and that he gav e the defendant one of the copies to read as t he search was being executed. Officer Donegan stated that he also compil ed an inventory lis t of the items seized during the search. He said that after the search he left an invento ry list with the defendant’s copy of the search warrant on the k itchen table at the residence. Officer Donegan testified that he told the de fendant that a list of the items seized would be left with the defendant’s copy of the search warrant at t he residence for safekeeping purposes. He said that he le ft the copies at the residence bec ause he knew that the defendant was going to jai l and would have difficult y keeping up with the inventory list

.

The trial court denied the defendant’ s motion to suppress. It found that Officer Donegan properly provided a copy of the w arrant to the defendant and that he left a copy of the warrant a nd inventory list on the table at the residence.

A trial court’s findings of fact on a motion to suppress are c onclusive on appeal unless the evidence i n the record preponderates ag ainst them. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). The application of the law to the facts as determined by the trial court i s a question of law that i s reviewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

Rule 41(c) of the Tennessee Rules of Criminal Procedure pro vides in pertinent part as follows :

The magistrateshall prepare an origi nal and two exact copies of the search warrant, . . . one of which shall be lef t with person or persons on whom the search warrant is served

. . .

. [T]he failure of the ser ving o ffi cer where possible to leave a copy with the person or persons on whom the search warrant is being served, shall make any search conducted under said search warrant an illega l search and any seizur e thereunder

an illegal seizure. The intent of Rule 41(c) is to “secure the citizen against carelessness and abuse in the issuance and execution of search warrants.” State v. Steele , 894 S.W.2d 318, 3195

(Tenn. Crim. App. 1994). Rul e 41(d) states that the “officer taking property under the warrant shall gi

ve to the person from whom or from whose premises the proper ty was taken a copy of the warrant and a receipt for the property taken or shall leave t he copy and receipt at a place from w hich the property wa

s taken.” The provisi ons of Rule 41 are mandatory. Steele , 894 S.W.2d at 319.

The supp ression is sue turns on whethe r Office r Donegan did in fa ct leave a copy of the search war rant with the defendant in acco rdance with 41(c) and ( d). Upon review, we conc

lude that the evidence does not preponderate against the cour t’s finding that Officer Donegan gave t he defendant a copy of the warrant . Therefore, we hold that the trial court properly denied the motion to suppress.

II. MOTION IN LIMINE The defendant contends that the trial cour t erred when it denied the defendant’s motion to prohibit the s tate from introducing into ev idence at trial five car titles that were discovered on January 25, 1996, in a safe seized from the def endant’s apartment during the search on December 9, 1994. The defendant argues that a prereq uisite

to intr oducing tangib le evi dence is

that the “witn ess must

be able t

o identify the evidence or establish an unbroken chain of custody.” State v. Goodman , 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982). Although the defendant admits that identifying the titles

as belonging to him is

self-evident, he insist

s that the state failed to establish the requisit

e chain of custody. Specifical ly, the defendant contends that the state failed to demonstrate that ther e had not been any tampering, s ubstitution, or mistake during that perio d of time which elapsed betw een the initial search and th e discovery of the titles at issue. In addition, the defendant sub mits that this evidence should have been excluded un der Rules 403 and 602 of the Tennessee Rul es of Evidence. He argues that under Rule 403 the probativ e value is outweig hed by the6

danger that the evidence w ill mislead the jury

and that under Rule 602 the officer had no personal knowledge of how the titles arrived in the safe.
The state responds that the safe, and the c ar titles which it

contained, were secured in police custody after the search and that they were not tampered with in any way. The state ar

gues that the titles are hi ghly relevant to the instant case and that Officer Donegan had sufficient personal knowledge to testify

regarding the contents of the safe, in accordance wit h Rule 602. The state maintains tha t the trial court did not err in denying the defendant’ s motion in limine to prohibi t the state from introducing t he car titles into evi dence. We agree.

The defendant filed a motion in limine to ex clude the car titles found in the safe on the ground that the state cou ld not satisfactorily e stablish the chain of custody of the titles or their locat ion at the time of seizure. The trial court denied the motion , stating that the evidenc e was admissible and that the circumstances in whi ch the evidence was found went to the weight of the evi dence rather than its admissi bility. Although the circumstances in the instant case were unusual in that evidence is usually discovered before it is seized and not the rever se, the officer’s explanation for the delay in discovering the titles was found to be reason able by the trial cour t.
Officer Donegan stated that during the search of the defendant’s residence in December 1994, the officers found a safe, approximately eighteen inches square and weighing

thirty to forty pounds, located under the kitchen si nk. Officer Donegan testified that to open the s afe, it was necessary for him to hit the safe once or twice with a sle

dge hammer. He said that the front door popped open, and he found about seven hundred grams of coc aine in plastic bags i nside the safe. He said that he examined the inside of the safe and did not n otice anything else at that time. He said that the blow from the sledg ehammer pushed a shelf inside the safe ag ainst the roof of7

the interior. Officer Donegan testified that the saf e remained locked at the warehouse until January 25, 1996, w hen Officer Donegan gathered infor mation regarding the safe’s serial number and manufacturer for the defendant’s attorney. He stated that as he lowered the safe to the gr ound, he dropped the safe on a chair. H e stated that he immediately noticed a str ong odor of cocaine. Officer Doneg an said that he opened the door of the safe and a large plastic baggie containing cocaine and loose cocaine fell out. The car titles, list ing the defendant and Curtis Peac ock as owners, wer

e among the cocaine. He said that it appeared that the cocaine and the t itles had been lodged up against the roof of the safe and wer e knocked loose after he dropped the s afe onto the chair. Officer Donegan demons trated for the court how the safe was opened and the location of the shelf, drugs and car titles. At tri al, the titles were admi tted into evidence for the purpose of establ ishing the defendant’s owner ship of the safe. The state did not introduce the additional cocaine into evi dence.

In determining the admissibi lity of tangible evi dence, it is sufficient if the evidence establishes a r easonable assurance of the identity of the evidence. State v. Woods , 806 S.W.2d 205, 212 (Tenn. Crim. App. 1990). Absent a clear mistake or abuse of discretion, the decision of the trial court conce rning the sufficiency of evidence as to the chain of custody w ill not be disturbed. Wade v. State , 529 S.W.2d 739, 742 (Tenn Crim. App. 1975); State v. Goodman , 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982).

In our view, the tr ial court properly determined that the state establi shed a chain of custody for the car ti tles. Officer Donegan testifie d that after he seized the safe on December 9, 1994, he properly tagged it before send ing it to the Vice Warehouse for storage. He state d that the safe remained locked up at the warehouse until he retrieved it on January 25, 1996. The trial court heard Officer Donegan ’s testimony and thoroughly investigated the unusual circumstances surroundi ng the8

discovery of the car t itles. At the conclusion of the trial court’s heari ng, the court was satisfied that the officer’s ex planation was credible and that the discovery of the titles was reasonable under the circumstances of this case. W e hold that the evidence supports the trial court’ s determination that the polic e did not tamper with, subs titute, or make a mi stake with the evide nce while it was in polic e custod y.

As for the defendant’s contentions w ith respect to Rules 403 and 602, Tenn. R. Evid., we note that the defendant asserted in his moti on in limine that the titles were excludable under these rules. Howev

er, at the hearing, the defendant di d not argue that the evidence s hould be excluded on the basis of Rules 403 and 602. Nor did the trial court make a ruling regarding the admissibility of the evidence under these rules. As stated by thi s court in State v. Kinner , 701 S.W.2d 224, 227 (Tenn. Crim. App. 1985), “[t]he filing of a motion with the clerk without presenting it to the trial court for determination is of no effect.” Mor eover, “[a] trial j udge will not be plac ed in error for failing to consider something which was never presented to him.” Id

.

In any event, we bel ieve that Officer Donegan’s testimony demonstrated sufficient knowledge of the matter s regarding the init ial search and seizur e, as well as the facts surrounding the subs equent discovery of the hidden car titles, to compl y with the “personal knowledg e” requirement in Rule 602. Furthermore, Rule 403 w as not violated. The probative value of the titles on the issue of ownership of the cocaine is not substantially outweighed by the danger that the jury would have been unfairly misled. The trial court di d not abuse its discretion in admitting the evidenc e.

III. RECALL O F A WITNESS Finally, the defendant contends that the trial court err ed in permitting the state to recall Curtis

Peacock as a witness dur ing its case-in-chi ef. He submits that Peacock’s testimony w as so inconsistent and contr adictory that it should

have been9

excluded in its entir

ety. Relying on Taylor v. Nashvi lle Banner Publishing C ompany , 573 S.W.2d 476, 482-83 (Tenn. App. 1978), the defendant argues that it is the rule of law in this state that contradictory statements of a witness relating to the same fact have the effect of “canceling each other out.” The state responds that this rule only applies when the inconsi stent testimony is unex plained and when neither v ersion of the witness’ testimony is corroborated by other evidence. Id . at 483. The state agrees that the testimony of Curtis Peac ock was inconsistent, and the state admits that it w as not corroborated by other testimony or facts. However, the state maintains that Peacock explained the inconsistent testimony by testify

ing that he was nerv

ous and had difficulty hearing the

questions, and thus, the rule from Taylor

is inapplicable here. We agree.

Curtis Peacock’s testi mony was inconsistent the first time he testified. Initial ly, Pea

cock tes tified d uring d irect e

xaminat ion by t he state that he s

aw the s afe possibly a week or

two before the search. Then the w itness stated that he first noti ced the safe f

our to fi ve day s before the sear

ch and th at he wa

s not sur e wheth er the safe was there before the arriv al of Logan. He said that Log an began to live wi th the defendant two to three weeks before the search. Under cross-examinatio n, the witness stated that he guessed that he di d not see the safe until after Logan ar rived. Upon redirect examination, Peacock testified that he saw the safe before Logan arrived. He then stated that he was not sure when he first noticed the safe . Peacock changed his testimony two more times . On redirect examinati on, he said he remembered telling the state’s attorney that he s aw the safe before Logan arriv ed but that he was no longer sure and was confused. On recross examination, he testified tha t Logan was there before he saw the safe, and on the subs equent redirect examinat ion, he again said that he saw the safe before Logan arr ived.

Peacock was recalled b y the state the next day to clarify his testi mony. He testified that he saw the safe before Logan arrived and said th at he contradicted his10

own testimony because he w as nervous and confused the day before. He did not change his testimony dur ing the remainder of the exami nation. On cross-exami nation, he stated that he saw the safe before L ogan arrived and that he w as telling the truth.

The decision to recall an ex cused witness is v

ested within the discr

etion of the trial court. State v. McAlister , 751 S.W.2d 436, 438 (Tenn. Crim. App. 1987). The trial court’s decisi on to allow a party t o recall a witness w

ill only be disturbed

upon a showing of abuse of discreti on. State v. Caughron , 855 S.W.2d 526, 539 (Tenn. 1993).

We agree that the testimony first giv en by Curtis Peacock w as confusing and inconsistent. However, the defendant’s claim that Curtis Peacock’s contrad ictory testimony was not ex

plained on recall does not neg ate the fact that the trial cour t had the discretion to allow the testimony. We see no ab use of discretion upon the record before us.
In consideration of the foregoing and the record as a whole , the judgments of conviction ar e affirmed.

_______________________________

Joseph M. Tipto n, Judge

CONCUR:

David H. Welles, Judge

Joe G. Riley, Judge