### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Decem ber 10, 200 2 Session
STATE OF TENNESSEE v. AN GELA E. ISABELL
Direct Appeal from the Circuit Court for Lewis County Nos. 6179, 6188, 6189 Robert E. Lee Davies, Judge

No. M2002-00584-CCA-R3-CD - F iled June 27, 2003

The appella

nt, Ange la E. I sabell, w as convicted by a jury in the Lewis County

Circuit Court of three counts o f the sale or delivery of controlled substances. The trial court imposed a total effec tive sentence of four ye ars incarceration in the Tennessee D epartment of Correct ion. On appeal, the appellant contests her convictions for the “sale or delivery ” of controlled subs tan ces and further complains about

stateme nts made d

uring tr ial by the State and the Sta

te’s witn esses. Th

e State concedes that ther

e is reversible error. Finding the appe llant’s a rgumen t to have m

erit, we revers e all three of the appellant’s convictions and remand to the trial cour t for further proceedings. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t is Reve rsed and Remande

d.

N ORMA M C G EE O GLE , J., delivered the opinio n of the c ourt, in which D AVID G. H AYES and J OHN E VERE TT W IL LI AMS , JJ., joined.

Joel Kachinsky, Summertown, Tenne ssee (on appeal), and Fred J. Ra

mos, Nashville, Tennessee (at trial), f or the ap pellant, Angela

E. Is abell. Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; Ronald L . Davis, D istrict Attorney General ; and Jeffrey L . Long, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

I. Fact ual Backgro

und On May 1, 2000, Danny

Wigginton was acting as a confide ntial informant with the Twenty -First

Judicial Drug Task Force. Wigginton met withAgent Jack Frantz, a member of the drug task force, to inform Agent F rantz that he ha

d arran ged to purchase

controlled substanc e pills from the appellant. Agent

Frantz searched Wigginton and Wigginton’s vehicle and gave him a tendollar-b ill with whic h to make t he purch ase. Wig ginton w as also“wired” wit h a trans mitter to record the transaction.1 At trial , Glenn Everett, a specialagent forensi c scienti st wit h the Tennessee Bureau of I nve st ig ati on cr ime laboratory, tes tif

ied that Lortab is the common name for dihydrocod inone or hyd roco don e. Add itionally, D arvo cet is the common name f

or propoxyphene.
-2- Wigginton immediately went to the house of his next-door neighbor in Hohenwald, Donald Marshall Isabell, to talk with I sabell’s daughter, the appellant. The appe llantwas freque

ntly at her ailing father’s residence to take care of him. Wigginton asked the appe llant if he coul d purchas e Lort

ab pills, a controlled substanc e. The a ppellant replied that she d id not have any L

ortab at that time, but she did have Darvocet pills, also a controlled substance. 1 The appellant stated that she could obtain the Lortab at a later da te. The appellant typica lly obtained the L

ortab and the Darvocet through legitima te prescriptions for Isabe

ll. Wigginton knew from conversations with his daughter, Amy

Wilson, who w as also a

cting a s a confidential informant with the drug task force, that the pills were two dollars each. The appe llant instr ucted Wig ginton to

retriev e the app ellant’spurse from the porch of the house and hand the purse to her. The appellant handed

three Darvoc et pills to Wigginton. He paid for the pills with the ten-dollar-bill he had obtained from Agent F rantz. The appellant gave Wigginton fo ur dollars in change. Wigginton confirmed tha t the appellant needed
a ride toCo lu mb ia th e n ex t d ay. Unbeknownst to Wigg inton, the appella nt was g oing to Co lumbia to obtain crack cocaine for Wilson.

Wigginto n left the residence and met with Agent F rantz who again search e d Wigginton and his vehicle. Wigginton relinquished possession of the Darvoc et to Agent Frantz.

The next day, May

2, 2000, Wilson met wi

th Agen t Frantz to inform him that she had arranged to purchase crack cocaine f rom the appellant. In acc ordance with his procedure, Age nt Frant z search ed Wil son and her vehicle and placed a transmitter on he r body to rec ord the transaction. Agent Frantz gave Wilson one hundred dollars with which to make the purchase. Immediately

thereafter, Wilson visited the appellant at Isa bell’s residence. Wilson
was als o a neighbor of I sabell’s. Wilson informed the appellant that she wished to purchase o n e hundreddollars’ worth of crack cocaine. The appellant telephoned “Boost” or “Boo,” an individual who lived in Columbia and told him that she wanted to purchase one hundred dollars’ worth of cra ck cocaine. Wilson handed the appellant the money she had gotten from Ag ent Frant z. Shortly thereafter, Wigginton drove the appe llant to Colu

mbia where she directed him to a residential are a. The appella

nt went int

o a white house and

soon retu rned tothe vehic le. The tw o later r eturned to Isabell’s residence in Hohenwald. Whe n Wigginton left the appellant at I sabell’s residence, the appellant asked Wiggintonto send Wilson to the residence. Wilson came to Isabell’s residence a nd the appellant handed her five “rocks”of crack cocaine.

Wilson again met with Agent Frantz who then searched her and he r vehicle. Wilson surrendered the crack coc aine to Agent Frantz.

Fi na ll y, on May

4, 2000, Wilson followed the esta blished pr ocedure of meetin g with
a drug ta sk force agent, who on this occasion wa s Joey Kimble, the director of the task force. After-3-

the meeti ng, Wilson entered Isabell’s residenc e in search of the appellant. The appellant wa s in the kitchen, cooking. Wilson askedto purchase Lortab. The appe llant instr ucted Wilso n to take t

he pills outof a medi cine bott

le lo ca te d i n t he ap pe ll an t’ s p ur se . W il so n t oo k f iv e p il ls an d p la ce d a tw en tydollar-b ill on the kitchen counter. Wilson left the residence, met with Direc tor Kimble, and relinquished custody of the pills.

The appellant was convicte d of one c ount of the saleor delive

ry of less tha

n .5 gra ms of crack cocaine and was sente nced to four y ears incarceration. See Tenn. Code Ann. § 39-17-417(a) (1997). At the same trial, the appellant was found guilty of one count of the sal e or delivery of Darvocet and one c ount of the

sale or d

eli very of L

ortab and was sentenced to three y ears incarceration

on each count. Id. The trial court ordered all of the appellant’s sentence s to be served concurrently

. On appeal, the appellant raises the following issues for our review: (1) “[w]hether the trial court, faced with duplicitous counts in the indictments of these cases, erre d by not requiring the state to elect which particular offense it would rely on for con viction, b y f

ailing to adequa tely instruct [the] jury as to its need to achieve unanimity in each case, and by

not vacating these ve

rdicts
as so unintelligible as to render them invalid” and (2) “[w]hether the trial c ourt erred by

not excluding irrelevant and prejudicial testimony , not declaring a mistri al, no t gi ving curative instructi ons, permitting the State to elicit this ir releva nt and pre judicial t estimony from Dru g Task Force Directo

r and [Wilson ], and per mitting the State’ s prejudi cia l statem ent during closing argume nt, regarding the opera

tion of the Twen ty- first Judicial Drug Task Force, the Drug Task Force operation in Lewis County in 2000, selling prescription drugs and threats to [Wilson].”

II. Analysis A. Duplic ity a

nd Unanim

ity The appellant’s first issue centers around the nature of her convictions. The appellant argues that the indictmentswere du plicitous a

nd the jur y ve rdicts we re not una nimous bec ause

each count charged two distinct offenses, the “s al e” or “d el iv er y” of a controlled substance, and the jury convictedth e appellant

of the “sale or delivery” of the controlled substances. The appellant was indicted on three separate count s. One coun t charged the appellant with the “sale or delivery” of cocaine on May 2, 2000; one count cha rged the appe ll ant with the “sale or delivery ” of dihydrocodeinone (

Lortab) on May

4, 2000; and one count charged the appe llant with the “sale or de li ve ry” of

propoxyphene (Dar

vocet). The State concedes th at “[t]he ve rdict wa s not suff

iciently definite or sp ecific to ide ntify the crime for which the defendant was convicted[; therefore ,] the convictions here cannot stand.”

The sentenc ing comm

ission comm

ents foll owing Tenn essee Code Annotated section 39-17-417 explain tha

t “[t]he com

mis s ion wished to make it clear that each of these ac ts[, i.e. the manufactureof a controlled substance, t he deliv ery of a

controlled substance, and the sale of a controll ed substa nce,] was a separate offense.” See Tenn. Code Ann. § 39-17-417(a)(1)-(3). Ge ne ra ll y, it is imperm

issible to charg e two disti nct offe

nses in a s ingle

count indictment. See State
v. Jefferson , 529 S.W.2d 674, 678 (Tenn. 1 975). I n other w ords, “all crimes arisi ng from the same-4-

incident that are not lesser incl u ded offenses of another crime cha rged in the indictment must be charged in separate counts.” St ate v. Gil l iam , 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995). Ac co rd in gl y, if the indictments underlying the offenses ha d c harge d the off enses in s eparat

e alternative counts; e.g., count one the sale of crac k cocaine, count two the delivery of crack cocaine; the indictmentwould not be faulty. We ag ree with the appellant

that the indictmentsimpermiss ibly charged two separate of

fenses within a single count.
Moreover, in Tennessee a criminal accused enjoy s a constitutional right to a jury tria l when she faces confinement or a fine of more than fifty

dollars. See State v. Lemacks , 996 S.W.2d 166, 169 (Tenn. 1999). “This constitutional right necessarily includes the right to a unanimous jury verdict before a conviction of a criminal off ense may be

imposed.” Id. at 169-70. Notably, [q]uestions regar

ding jur y un animity

gener ally ar ise in cases where the prosecution presents evidence to the jury that tends to show more than one criminal offense, but the underlying indictment is not specific as to the offense for which the a ccused is being tried. Id. at 170. Importantly , the right to unanimity protects ag ainst the possibility of a “patchwork” verdict

. See State v. Forb es , 918 S.W.2d 431, 446 (Tenn. Crim. App. 1995). In other words, the appellant is entitle d to be con

victe d of the sale of a controlled substance or the deliver y of a controlled substance; she cannot be convicted of the sale or delive ry of a controlled substance based upon the sa

me set of f

acts unde r a sing le count o f an indic tment.
The State argued

during closing

argume nts that the

appella nt was guilty

of the “s ale
or delivery” of

the controlled substances. The trial court instructed the jury that, in order to find the appellant guilty, the jury

must find beyond a rea sonable doubt “that the appellant sold or delivered” the controlled substances. No unanimity instruc tion was given. Moreover, the verd ict forms reflect that the jury found the a

ppellant “Guilty of

Sale or Delivery .” Thus, it is unclear as to wha t offens e the jury unanimously

convicted the appellant. See Baldwin v. State , 372 S.W.2d 188, 189 (Tenn. 1963). The jury’s true decision is a matter of speculation. See State v. Andre P. Virges , No. 02C01- 9206-CR-00124, 1994 WL 51420, at *3 (Tenn. Crim. App. at Ja ck so n, Fe b. 23 , 1 99 4) . A cc or di ng ly, we must reverse the appellant’s conviction due to the lack of unanimity in the verdict.

As an aside, we note that the ap pellant a dmi ts that she did not raise the issue of unanimity

at trial. However, “the unanimity requirement is a fundamental right and not conting ent upon a request being made.” State v. Brown , 823 S.W.2d 576, 585 (Tenn. Crim. App. 1991). B. Preju dicial Sta

tements As her se cond issue , the appe llant comp lains: [Wilson] testi fied i n deta il on her rol e in th e Drug Task For ce operat ion in Lewis County in 2000, in which she was a major particip ant, and that a s a resul t o f her participation she has received threats and two of her children were taken aw ay from he r because of the safety issues due

to the threats against her.-5- The Directo

r of the Twenty -first

Judicial Drug Task Force testifie d in detail on the operation of the Drug Task Force, its opera tion in L ewis County during 2000, and the problems in Lewis Count reg arding the illega l sale of p rescription drug s.
T he State, in its closing argument commented on the Dr ug Tas k Force’s operati on in L

ewis C ou nty in 2000, including the fa ct that there were fifty -four individuals charged and eighty- something cases in the Lewis County

operation, with the maj ority of cases already disposed of.

The appellant argues that the afore mention ed s tatements were irrelevant and prejudic ial. We need not address this issue in detail because, from our review of the record, we can discern no instance in which the appellant objected to the contested statements. Ou r ru les do not require “relief [to] be granted to a party responsible for

an error or

who failed to take whatever action
was reasonably

available to prevent or nullify the harmfu l effec t of an er ror.” Te nn. R. App. P. 36(a). Thus, because the appellant failed to m ake acontemporaneous objection to the offensive statements and instead raised the issue for the first time on appeal, she has waived this issue. See State v. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988).
III. Conclusion Based on the foregoing, we reve

rse the appellant’s convictions and remand to the trial court for further proceeding s.

___________________________________ NORMA McGEE OGLE, JUDGE