### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. MUR RIEL LAMAR LEE Direct Appeal from the Criminal Court for Dyer County

No. C98-223 Lee Moore, Judge

No. W1999-01094-CCA-R3-CD - Decided May 30, 2000

Defendant

appeals his convic

tions on two counts of

sell ing cocaine in an amount in excess of .5 grams, and one count of selling cocaine in an amount less than .5 grams. He alleges the trial court erred by permitting state witnesses to read from note s that were in thei

r possession at the time they testified. This court

has reviewed the record

of the case and a

ffirms the judgmen

t of the trial cour

t. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt Affirmed. O GLE , J. delivered the opinion of the court, in which W ADE , P.J, AND W ILLIAM S , J. joined. Jim W. Horner, Public Defender; H. Tod Taylor, Assistant Public Defender (Trial); C. Michael Robbins (Appeal), Memphis, Tennessee, for the appellant, Murriel Lamar Lee. Paul G. S u mmers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION FACTS The Dyersburg Pol

ice Department s

et up a sting opera

tion for persons in

volved in the sale of illegal drugs. Dur

ing February 1999,

undercover poli

ce officers pur

chase d c ocaine from the defendant on three separate occasions; February 10, February 13,and February 24. Defendant was subsequently cha

rged and convict

ed on two counts

of selling cocaine in an amount in excess of .5 grams, and one count of se lling cocaine in a

n amo unt less than .5 grams. The defendant was sentenced as a Range II multi

ple offender to t

wo terms of seventeen

years for selling cocaine in an amount in excess of

.5 grams, and eight years for selling cocaine i

n an amount less tha

n .5 grams. The court further

stipulated that the

se sentences we

re to be served c

oncurrently with

each other, and consecutively

to any prior sentences not yet served. In this appeal as of right, d efendant’s s ole contention is that the trial court erred by permitting two state witnesses to testify by reading from notes taken to the witness stand.-2- ANALYSIS A. Forensic Scient

ist’s Testimony Defendant

contends that the t

rial c ourt erred when it permitted the forensic scientist, who identified the con trol led substances as cocaine, to testify using notes that were in the witness’s possession when she took the witness stand. The trial co urt ruled thatthe witness could use her notes to refresh her r

ecollection if the

proper foundati

on were l aid. The ruling was proper under Tenn. R. Evid. 612. However, under Tenn. R. Evid. 612, the writing should be removed from the witness once it has been used to refresh the witness’s recollection. See State v. Dishman , 915 S.W.2d 458, 461 (Tenn. Crim. App. 1995). There is no such req uirement under the recorded recollection exception to the hearsay rule. See Tenn. R. Evid. 803(5). Unfortun ately, the record does not reveal the extent, if any, to which the witness act uall y used her notes to testify. She testified at length with regard to the testing procedures, and there was no further objectio

n relating to the us

e of notes. We also note that t he actual crime

laboratory repo

rts were in troduced without objection as exhibits to the forensic scientist’s testimony. These report s reveal two cocaine samples weighing .7 grams and one cocaine sample weighing .3 grams. Thus, defense has failed to establish a violation of the rules of evidence, and has further failed to establis

h prejudice as a r

esult of the trial court’s ruling. We need not address the issue of whether the notes were properly used under the recorded recollection exception to the hearsay rule. See Tenn. R. Evid. 803(5). B. Officer’s Test

imony The defendant

contends that the trial court erred when it permitted a police officer to testify using records in his poss ession when he took

the witness sta

nd. Th e officer supervised the undercover

agents and mo nitored all three sales of cocaine. His testimony consisted of approximately 40 pages of transcript and detailed the circumstances of each sale. There was only one objection by defense counsel relating to the use of the notes. Thequestion drawing the objection was whether

the officer was able to “hear” what appeared to be a drug transa ction. Again, the trial court ruled that the witne s s could use his notes to refresh his recollection. The officer then stated that he could hear what

appeared to be a drug transaction. It is unclear whe ther he relied up

on his notes to make this response. Again, just as in the testimony of the forensic scientist, defendant has failedto establish in the record that there was a violation of the rules of evidence. As t o other times in the officer’s testimony when he allegedly refer re d to his notes, the failure to make a contemporaneous objection waives this issue. Tenn. R. A

pp. P. 36(A); State v. Killebrew , 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). CONCLUSION The judgment of the trial court is affirmed.