### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON August 7, 2001 Session
STATE OF TENNESSEE v. MARVIN WOODS
Direct Appeal from the Circuit Court for Hardeman County

No. 6403 Jon Kerry Blackwood, Judge

No. W2001-00316-CCA-R3-CD - Filed October 5, 2001

The defendant was convicted of the introduction of contraba nd into a penal insti tution, a Class C fel ony, for smuggling marijuana into the prison where he worked. The trial court sentenced him as
a Range I, sta

ndard offender

, to three ye

ars in the Depar

tment o f C orrection, with the sentence suspended, and the defendant placed on supervised probation for three years. Following the denial of his motion for a new trial, the defendant filed a timely appe

al as of right to th

is court, alleging that the trial court erred in allowing a prior inconsistent statement to be introduced, in its instructions as to the statement,

in concluding that theState sufficiently proved the chain of custody , and in ruling that trial counsel had not been ineffective. Based upon our review of therecord and of a pplicable law, we affirm th

e judgment of the

trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined. C. Michael Robbins, Memphis, Tennessee (on appeal), and Jeannie Kaess, Bolivar, Tennessee (at trial), for the a

ppellant, Marvin Wo

ods.

Paul G. Summers, Att

orney Gener

al and Reporter; J. R

oss Dyer, A

ssistant Attorney

General; Elizabeth T. Rice, D i strict Attorney General; and James Walter Freeland, Jr., Assistant District Attorney General, for the appellee, State of Tennesse e.
OPINION

The defendant, Marvin Woods, was employed as a correctional office r at the Harde ma n County Cor rect ion al Fa cil ity, a pri vat e pri son faci lit y in White ville, Tennessee, operated by Corrections Corporation of America (“CCA”). He was caught smuggling marijuana into the facility
on the morning of

May 14, 1999, and was subsequently convicted of the introduction of contraband into a penal institution, in violation of Tennessee Code Annotated Section 39-16-201(a)(1 ). In a timely appe

al to this court, the

defendant raise

s four issues, whic

h he presents as f

ollows:-2- I. Did

the trial co urt err by departing from the languag e of the pattern instruction, T.P.I

. 42.06, in its instruction to the jury regarding an alleged prior inconsistent statement by defendant?

II. Did

the trial court err

by permitting the

prosecution, under the guise of laying a

foundation for im

pea chment of the defendant by proof of a prior inconsi

stent statement,

to ask a question of the defendant on cross examination when the trial court and [a]ll parties to the trial knew that the defendant had not made such prior stateme

nt?

III. Did

the trial court err by overruling the defendant’s objec tion as to the sufficiency of the chain of custody proof?

IV. Was the defendant denied the effective assistance of counsel at his trial ?

After a carefu l re view of the record and of applicable law, we conclude that the trial court didnot err in admitting the prior inconsistent statement for impeachment purposes, or in instructing the jury regarding the purpose for which the statement was admitted. We further conclude that the trial court did not err in allowing the objected exhibit into evidence, the State having showna proper chain of custody for its admission, and that the defendant failed to demonstrate that he was denied the effective assistance of trial counsel. Accordingly , we affirm the judgment of the trial court.
DISCUSSION

The defendant’s tri

al was held on Fe

bruary 4, 2

000, before a Ha

rdeman County

Circuit Court jur y. Andrew Jones, the Hardeman County Correctional Facility assistantshift supervisor on duty
on the morning of May 14, 1999, testified that the defendant came into the prison at the beginning of his s hift carrying a McDonald’s bag. When Jones asked to see the c ontents of the bag, t

h e defendant set it on the floor and brought out two Styrofoam trays, ope ning them to show Jones that they contained brea

kfast food. Jones sa

id that he asked what else was in the bag, and the defendant told him “nothing.” Howev er, when h e looked in the bag, Jo nes saw two c lear plasti c bags containing a green leafy substance

. Jones said that he the

n used his radio to call the shift supervisor, Rosa Robinson, who was standing a few ste

ps awa y, to come to his position to check the bag. He also talked to the administrative duty officer, who told him to call the Whiteville Police Department. Atthat point, the defendant backed to the door, said, “You can’t hold me, I’m leaving,” and left the prison.

On cross-examination

, Jones denied that he

had brought the m

arijuana into

the prison in an effort to “frame” the defendant and denied that he had made an y commen ts of a sexual nature-3-

towards the defendant. He also denied that he had ever asked the defendant to go dri nking o r dancing with

him. He testified that he had not had any personal problems with the defendant, and had not been aware of the defendant’s having filed a grievance

against him with the shift supervisor, Jeremy Hensley. However,he did acknowledge that, prior to the incident of May 14, Hensley had called him into a meeting to ask what “the beef” was between him and the defendant.

O ffi cer Steve Cox of the Whiteville Police Department, who responded to the call to the prison facility, testified that he did not see the defendant at the prison, but thathe later spoke to h im at the Hardeman Cou

nty Sheriff’s Department, where he was transported after his arres

t. Cox said that Jones handed him a McDonald’s bag when he arrived at the prison. In

side the bag, und

erneath
a white Styrofoam food tray, h e found two cl ear plastic bags of what appeared to be marijuana, which he secured as evidence. He later tran sported the evidence to the Tennessee Bureau of Investigation (“TBI”) Crime L aboratory in Jackson for drug analy sis. Shortly after the defendant left the prison, Deputy Anthony Bynum of the

Hardeman County Sheriff’s Depa

rtment spotted him in

his car at a stop sign in Bolivar, Tennessee. Bynum testified that as he drove past the defendant’s vehicle, the defendant ducked down behind the steering wheel,
as if t ryi ng to hide f

rom sight. Bynum turned his patrol car around and watched the de fendant quickly enter the parki ng lot of a McDonald’ s restaurant thro ugh the front en

trance and then

exit through the back entrance. After taking the defendant into custody , Bynum transportedhim to the Hardeman County Sheriff’s Department. Kay Sheriff, the reg

ional crim e laboratory

supervisor of the

TBI Crime L

aboratory in Jackson, testified that she received a manila eviden ce env elope from Officer Cox. Her notes indicatedthat the envelope contai ned a CCA identification card with the defendant’s name and photograph, a f

ield drug test kit,

and two plastic ba

gs of green le

afy plant ma

terial. She tested the plant material, and identified it as 103.6 grams of marijuana.

In his trial testimony, the defendant denied having brought the marijuana into the prison on May 14, 1999. The defendant testified that Jones pulled him a

side as he was ent

ering the prison

to begin his shift,

waiting until the o

ther employ

ees had departe

d to their duty

stations and they were alone, before asking him what was in his McDonald’s bag. The defendant sugg ested that Jones planted the drugs in retaliation for his having filed a grievance, two weeks earlier, against Jones. He said that he had complained to Supervisor Hensley about sexual comments that Jones had made to him, and that Hensley had had a talk with Jones about it. He admitted on cro ss-examination, however, that he did not have a copy of the grievance form that he claimed to have filed. He explained that he had left the prisonafter the dru gs were discovered because his “mind went blank,” and said that he c ould no t remember having attempted to hide from Officer By num’s view. He deniedthat he had admitted to Officer Cox that he had brought the drugs into the prison on the day of his arrest.-4-

The State called Officer Steve Cox in re buttal, who testified that after the defendant was arrested and brought to the Hardeman County Jail, Cox read him his righ ts, and the defen

dant told him that he had taken the drugs into the facility.
ANALYSIS
I. Prior Inconsist

ent Statement

The defendant contends that the trial court erred in allowing Officer Cox to testify that

he had admitted to bringing the drugs into the prison on May 14, 1999. During his testimony at the motion for new trial, the defendant said that he admitted instead to having brought

drugs into the prison on two prior occasions. Thus, he argues that his admission to Officer Cox did not constitute a prior inconsistentstatement to his testimony at trial in which he denied admitting to Officer Cox that he had brought drugs into the facility on the day of his arrest. The State responds by arguing that the defendant has waived the issue for failing to raise a timely objection at trial to the rebuttal testimony of Officer Cox and, further, that the defendant’s statem en t, as related by Officer Cox, was an accurate and fair paraph

rase of the defe

ndant’ s admission, and that the trial court did

not err in allowing it to impe

ach the defenda

nt’s testimony

at trial.

The reso lution of the issue as to the defendant’s statement requires a review of the chronology of the dispute.

After opening argu

ments in this case, the trial court held a hearing outside the presence of the jury to consider the defendant’s motion in limine to suppress the statement he allegedly had made to Officer Cox. At

this hearing, the defendant’s trial counsel told the court that the State had notified her of the defendant’s statement only the previous day, via a messag e left on her

answering machine, the message being that

the defendant had admitted to Officer Cox“that he had brou ght drugs into the prison on two other occasions.” Defense counsel then aske d that the statement be excluded because it had not been earlier provided t o the defense, although the trial court had ordered disclosure pursuant to Tennessee Rul e of Criminal Procedure 16, and that the statement was inadmissibl e as proof o f prior bad acts, in violation of Tennessee Rule of Evidence 404(b). Immediately

after trial counsel finished speaking, the prosecutor offered a correction, informing the trial court that the defendant’s statement had not been that he had done it twice before, as characterized

by defense counsel, but rather, that “this was only the second time he had don e it.” The prosecutor went on to announce that the State inten ded to use the def

endant’s stateme

nt only in rebuttal, and tha

t he would phrase h

is question to Offic

er Cox in such a manne

r as to eliminate any reference to the defendant’s prior bad acts. Defe nse counsel d

id not protest the prosecutor’s correctionof the statement, a nd there was no further discussion concerning which words the defendant had used. Although the defendant asserts on appeal that differing interpretations might be made of the word“it” in the prosecutor’s phrase, “This was only the second time he had done it,” the trial court-5-

concluded, after hearing the excha nge betwee n the prosecutor and defense counsel, that the defendant’s statement could on ly be used, if

at all, on rebuttal following thedefe nda nt’ s te sti mon y. Thereafter, during the State’ s cross-examinati on of the defendan t, the foll owing excha nge occurred: Q. All right . Did yo u or did y

ou not tell

Officer Cox that you bro ught the dru gs in to t he fa cil ity?
A. No, sir, that’s n

ot correct. Q. Officer Steve Cox of Whiteville Police Department, there at the HardemanCounty Jail. Did –are you de

nying that y

ou told him, upon your arrest that day for bringing drugs into the facility, that you

were the one tha t br ough t th ose dru gs in to t he fa cil ity?
A. No, sir. I did not tell Mr. Cox that, sir. No, sir.

With no objection made b y the defen

dant, the State ca

lled Officer Ste

ve Co x in rebu ttal, where the following exchange took place:

Q. Officer Cox, y

ou may have

testified about thi

s and I forge

t, but fo l lowing the arrest of [the defendant] on May 14th, 1999, did you have occasion to

see him at the Har

deman County

Jail?
A. Yes, I did.

. . . . Q. All right. And did you have an opportunity to read him what are commonly know

n as his Miranda ri

ghts?
A. Yes, sir. Q. And did he appe

ar to understand t

hem?
A. Yes, sir. Q. And listen carefully to my question, Office r Cox. Did [the defendant] tell you that he had taken the drugs into the faci lit y?
A. Yes, he did.-6-

Officer Cox admitted on cross-

examin ation that he had not made a written record of the defendant’s statement. Since he was not called to testify at the hearing on the motion for a new trial, the only information in the record regarding this statement is the prosecutor ’s explanation to the court as to its contents and the rebuttal testi mony of Officer Cox. Subsequently, the defendant testified at the hearing on the motion for new trial that Cox actually asked if he had done it before, to which he had answered, “[Y]es, on two other occasions, but not today.” The arguments

against the admissibility of Officer Cox’s rebuttal testimony are ba sed on the defendant’s assertion that the State incorrectly paraphrased his statement, altering it into one that he didnot make. Amplify

in g on this contention, he argues that “it is clear that no one at the trial thought the defendant e

ver made a direc

t statement of adm itting to this offense. If he had, there would have been no need for the prosecutor to ‘craft’ a new stat ement .” In attempti

ng to elicit a concession from

defense trial counsel that this contention was correct, defense appellate counsel asked her during

the hearing on t

he motion for new tr

ial: Q. In other words because hetold you he did this twice before, you inferred that he – that he did it this time?

A. No

. B ecause he was charged with bringing drugs in on May 14th, and we were talking about bringing drugs in on May 14th, and he said that he had done it two times before. In that context, he admitted he brought it in that day, and he had done it two prior times.

We believe that this is a reasonable interpretation by trial defense counsel of the import of the defendant’s statement. The commonsense meaning of the defendant’s statement, as related by the prosecutor, that

“it was the second

time he had done it,” is that he smuggled marijuana into the prison on the day that

he was arrested as well as one other time. The context in which the defendant made his statement to Officer Cox was that he was questioned after he had been stopped at the prison checkpoint,

accused of smuggling marijuana, suddenly lef t the scene, and then

tak en i nto cus tod y. Given this context, we disagree that there is any ambiguity i

n the word “it” as

the defendant a

sserts on appeal.

The defendant’s arguments regarding the statement also overlook the fact that the vehicle for getting the statement before the jury was not as a stipulation, agreed upon by the

parties, read by the prosecutor

and consisting of the prosecutor’s understanding as to its contents. Instead, Officer Cox
was specifically asked, after being refe rred by a previous question to the defendant’s May 14, 1999, arrest, whether the defendant told him “that he had taken the drugs into the facility.” Officer Cox answered, “Yes, he did.” The defense attempts to link the prosecutor’s recounting of the statement withOfficer Cox’s rebuttal response to reach the conclusion that Cox simply “inferred that [the defendant] brought the drugs into the prison that day.” However, the rebuttal question asked Officer Cox was unambiguous and his answer unequivocal. We decline to speculate that

Officer Cox merel

y was inferring that the defendant had admitted smuggling marijuana into the facility on t

he day of hi

s1 Although the statement w as utilized as a p rior inconsiste nt statement, as related by O fficer Cox it was actually

a confession even thoug h the defend ant denied having mad e it.
-7- arrest. This thesis could have been tested either during the cross-examination of Officer Cox or by questioning him

at the hearing on the motion for new trial. Without such proof, we cannot accept the defe ndant’s argument that Officer Cox, when asked if the defendant admitted taking the marijuana into the facility on the day of his arrest a nd answering, “Yes, he did,” really was saying, “Yes, I inferred that he did.”

It is without question that the trial court has discretion whether to admit rebuttal proof. See NeilP. Cohen et al., Tennessee Law of Evidence , § 6.11[10] (4th ed. 2000); State v. Kendricks , 947 S.W.2d 875, 884 (Tenn. Crim. App. 1996) (“[I]t is within the discretion of the trial court

to permit the state, in a criminal case, to introduce i n rebuttal even testimony which should have been intr oduced in chief.”) (quo ting State v. Cyrus Deville Wilson , No. 01C01 -9408-CR- 00266, 199

5 WL 676398, at *5 (Tenn. Crim. App. Nov. 15, 1995)). In Sykes v. State , 572 P.2d 247, 248-49 (Okla. Crim. App. 1977), the co

urt approved, in

a prosecution for death resulting from child abuse, the use, on rebuttal, of the

defendant’s sta

tement to the effect that he had caused the bruises on the child’s body after he had tes

tified in defense

that t he mar ks on t he bod y were a r ash, n ot bru ises. In People
v. Tofil , 188 N.W.2d 63, 65-66 (Mich. Ct. App. 1971), the prosecution was permitted to show, on rebuttal, that the defendant had denied being at the “Lucky B ar,” the scene of a robbery, after he had testified on direc

t examination that he

had been there t

hat night.

As for the procedu

re whereby

this statement was p

resented to the ju

ry, it is clear that a prior inconsistentstatement may be admissible

to test the credibi

lity of a witn

ess. 1 See State v. Smith , 24 S.W.3d 274, 279 (Tenn. 2000) (noting that Tennessee cases “have consistently held that a prior inconsistent statement is admissible under the Rules of Evidence when the prior statement is used to impeach the cre

dibility of a w

itness”). Rule

613(b) of the Tennessee Rules of Evidence prov ides, in pertinent part, th

at “[e]xtrinsic evide

nce of a prior inc

onsiste nt statement by a witness is not admissible

unless the witness is

afforded an opp

ortunity to e

xplain or deny

the same and the op

posite party is afforded an opportunity to interr ogate the w itness thereon, or the interests of justice otherwise require.” Our supreme court has held that extrinsic evi dence of a prior inconsistent statement is notadmissible unless the witness “either denies or equivocates to having made the prior inconsistent statement.” State v. Martin , 964 S.W.2d 564, 567 (Tenn. 1998).

In this case, the Stat

e la id the proper foundation for introduction of the prior inconsistent statement by specifically questioning the def end ant on cr oss-examination as to whether he had admitted to O fficer Cox that he h ad taken the drug

s into the prison on th

e day of his a

rrest . Th e requirem ent

for admission of the statement was met when the defendant unequivocally de nie d having made that statement. See id. There was no error, therefore, in allowing the State to introduce the prior inconsistent statement on rebuttal.

Add iti ona lly, we conclude that there was also

no error i n the redaction of the statement to eliminate the defendant’s reference to a prior bad act. As state

d by Neil P. Cohen et al. in Tennessee-8-

Lawof Evidence , § 6.13[5][f] (4th ed. 2000) (footnote omitted): “If extrinsic evidence of a prior inconsistentstatement is used, the trial court has the discretion to screen it and excise irrelevant or otherwise inadmissib le portions. This wil l prevent the jury

from being expose

d to inadmissible proof.” Thus, the trial cou rt was correct i

n allowing that Officer Cox be questioned only about that portion of the defendant’s statement which related to the offense with which the def endant was charged.

We have re viewed the two cases cited in the defendant’s brief, and they do not a lter the conclusions which we have reached regarding the rebuttal testimony as t

o the defendant’ s statement. In James Carter v. State , No. W1999-00799-CCA-R3-PC, 2000 WL 1664260 (Tenn. Crim. App. Oct. 23, 2000), perm. to appeal denied (Tenn. Apr. 9, 2001), the defendant argued that his trial counsel was ineffective

because she had not cross-examined at his second trial a prosecuti

on witness witha prior inconsistent statement from his first trial. Howev er, this court noted that what the defendant in Carter

was des cri bin g as a pri or i nco nsi ste nt s tat eme nt a ctu all y was onl y a representationby the prosecutor as to what the testimony of the witness wo uld b e. Since the first
case ended in a mistrial before that witness testified, there was no “sta tement” with which

to impeach the testimony of t

he witness at the se

cond trial. Likewise, in Doochin v. U.S. Fidelity & Guar. Co. , 854 S.W.2d 109, 114 -15 (Tenn. Ct. App. 1993), the court of appeals determined that, in a trial regarding a building destroyed by fire , the plaintiff could not be impeached, and no extrinsic proof about it presented, as to a statement allegedly made by the

plaintiff to a former employee, soliciting the latter to commit ar

son, when the state

me nt was inconsistent with the plaintiff’s deposition tes tim ony b ut n ot h is t ria l te sti mon y.
The se cases are not relevant to the instant case for, unlike in Carter , the defendant had actually made a prior statement, according to Officer Cox, and which, unlike in Doochin , directly
con tra dic ted the defe nda nt’ s tr ial tes tim ony. Thus, for these reaso

ns, we conclude th

at the trial court

was correct in al lowing rebuttal testimonyas to the defendant’s statemen t to Offic er Cox. We disagree with the defendant’s assertion that the statement, as related by the prosecutor, was ambiguo us as to whether the defendant had smuggled marijuana into

the prison on the day of his arrest. Additionally, the question asked O fficer Cox about the statement, and his response, canno

t be parsed to

reach the defendant’s conclusion that Cox was merely

testifying as to what he infe

rred from the de

fendant’s words

. This assignment is

without merit.

II. Jury Instruction

The defendant also contends that the trial cour t erred by f

ailing to issue the standard pattern jury instruction regarding his prior inconsistent statement. He argues that the trial court’s instruction altered the pattern jury instruction, which states that the jury is permitted to use the prior inconsistent statement only to tes t the credibility of the witness, into an affirmative statement that a prior inconsistentstatement affects the credibility of the witnes s, regardless of whether or not the jury2 Since the recor d on appeal does

not incl ude the tr

ial cour t’s i nstruct ions at the concl

usion of the t rial, we do not know w hether this was the only instruction g iven as to a pr ior inconsisten t statement.
-9- believes his testimony. The State disagree

s, arguing that th

e trial court’s in

struction was an a

ccurate statement of the law regarding the use of prior inconsistent statements.

A defendant has a constitutional right to a full, complete, and correct charge of the law

. State
v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). When a defendant alleges prejudicial error in the trial court’s charge to the

jury, the appellate court must consider the charge as a whole to determi

ne if it fairly defines the issues involved and does not mislead the jury. State v. Vann , 976 S.W.2d 93, 101 (Tenn. 1998). “A charge should be considered prejudicially e rroneous if it fails to fairly submit the legal issues or if it misleads the jury as to the applicable law.” Id. (citations omitted). Immediately

after Officer

Cox testified that the de fendant adm itted havi ng brought th e drugs into the prison o n the day of hi s ar res t, t he t ria l co urt iss ued the fol low ing i nst ruct ion to t he j ury: “Ladies and gentlemen, the purpose of tha t question is not to prove the fact of the matter asserted in the statement, but it goes to show or to effect [sic] the credibility

of the defendan

t, whether or not you believe or not believe the defendant.” 2

The Tennessee pattern jury instruction on the use of a prior inconsistent statement

provides:

A witness m ay be impeached by proving that he or she has made
somematerial statements out of court which are at variance with his
or her evidence on

the witness

sta nd. However, proof of such prior inconsistentstatements may be considered by you only for the pu rposeo f testing the witness’ credibility and not as substantive evidence of the truth of the matter asserted in such statements. T.P.I.–Crim. 42.06 (5th ed. 2000). Use of the pattern

jury instructions is not required. See State v. Phipps , 883 S.W.2d 138, 152 (Tenn . Crim . App. 1994) . In our view, the trial court’s instruction adequately convey ed that the jury was to consider t he prior inconsistent statement only as it affected the credibility of the defendant. The instruction clearly stated that the jury was not to consider the statement as proof of the matter asserted. The instruction further stated that the prior inconsistent

statement was to be used to test the credibility of the defendant. The trial court’s words, “whether or not you believe

or not believe the defendant,” were intended as a definition of

what is meant by

testing the cre

dibility of the defendant, rather than as an instruction that the jury had to co nsider the p rior inconsistent statement as affecting t

he defendant’s

credibility, regardless o f whether or not it

found him believable. In sum, although the instruction could have been more clearly worded, we conclude that it did notmislead the jury regarding the applicable law, a nd thus, thatno prejudicial error occurred from its use.-10-

Add iti ona lly, we no te that, although the defendant’s statement was treated as a prior inconsistentstatement, it amounted, as presented, to a confession that he had brought the marijuana into the prison facility on the day he was c harged with doing so. However, because the prosecutor had not advised defense counsel of the confession as required by a discovery order,the prosecutor
was allowed to utilize it only in rebuttal after the def endanthad denied making it. Thus, the statement bein g a confe ssion, the trial court could have given Tennessee Pattern Jury Instruction–Criminal42.12, the instruction as to a confession, which states, in part: “Evidence of
a confession has been introduced in this case. A confession is a statement by the defendant tha

t [he] [she] engaged in conduct which constitutes the crime charged and is an ac kno wledgment

of guilt itself.” T.P.I.–Crim.

42.12 (5th ed. 2000) (footnote omitted). The instruction which the trial court gave, treating the co

nfession as a

prior inconsistent statement, was more favorable to the defendant than the confession instruction would have been. Thus, for this additional reason, we conclude that this assignment is w

ithout merit. III. Chain of Custody

Th e defendant next contends that the trial court erred in allowing the marijuana to be admitted i nto evid ence, arguing that the State failed to establish the proper chain of custody necessary for its introduction. The State argues that it established the proper chai n of c ustody for the introduction of the marijuana by introducing testimony of e ach individual who handled the evidence.

In order for tangible evidence to be introduced at trial, the State m ust either introduce a witness who is a ble to i den tif y the evi den ce, o r es tab lis h an unb rok en ch ain of cu sto dy. St ate v. Goodman , 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982). The purpose of the chain of custody is to “demonstrate that there has been no tampering, loss, substitution, or mistake with respect to

the evidence.” State v. Braden , 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993).

The concept of a “c

hain” of custody

recognizes t

hat real evidence may be ha nd led by more t

han one person be

tween the time it is obtained and the time it is either intro du ced into evidence or subjecte d to scientific analysis. Obviously, any of these persons mi ght have the opportun

ity to tamper

with, confuse, misp

la ce , damage, substitute, lose and replace, or otherwise alter the evidence
or to observe another doing so. Each person who has cu stody or control of the evidence

during this time

is a“link” in the chain of
cus tod y. Gen eral ly, testimony from each link is needed to verify the authenticity

of the evidence and to show that it is what it purports

to be. Each link in the chain testifies abou t when, where, and how possession or control of the e vidence was obta

ined; its con dition upon receipt; where the item was kept; how it wa s safeguarde

d, if at all; any changes in its condition during possession; and when, where and how it left the witness’s possession.-11-

NeilP. Cohen etal., Tennessee Law of Evidence § 9.01[13][c] (4th ed. 2000) (footnotes omitted). Whether or not the required chain of

custody has been sufficiently established lies within the sound discretion of the trial court, and the trial court’s determination will not be reversed on appeal absent
a clear showing of abuse of discretion. State v. Beech , 744 S.W.2d 585, 587 (Tenn. Crim. App. 1987); State v. Johnson , 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984).

We find no abuse of

discretion by the trial court in this matter. At trial, the State introduced testimonyfrom each individual in the chain of custody of the evidence. None of these witnesses testified to having tampered with the evidence, having witnesse d anyone el

se tampering wit

h it, or of hav ing re ceived the evidence in a condition that would indicate tampering. The defendant’s supervisor, Andrew Jones, testified that he left the McDonald’s bag on the floor of the prison, where the defendant had placed i t, until the warden arrived and instructed him to carry it outside to the parking lot. In the parking lot, he turned the bag over to Officer Cox, who gave him a chain of evidence form to

sign to indicate Co

x’s receipt of the e

vidence from him.

Officer Cox testified that he followed the standard pr ocedure at the Whiteville Police Department to secure

the marijuana for

evidence by placing the plastic bags in a manila enve lope, tapin g the envelope closed, and signing his initials and the date across the flap. He then took the envelope to the TBI Cri me L aboratory in Jackson for further analy sis. He identified the standard request for analysis form that he had filled out and signed upon turning the evidence over to the crime lab, as well as the manila envelope containing his initials “SWC” and the date “5-14-99.” He reiterated on cross-examination that he had followed all standard proceduresin handling and turning over the evidence to the crime laboratory. Kay Sheriff was able to identify the ma nila envelope Of ficer Cox submitted to

the crime laboratory

by her laboratory number,the subject’s name, her initials, and the date that the bag was brought into the laboratory, all of which had been writtenon the envelope. She was able to further identify the envelope by

the crime labora

tory tape us

ed to reseal the bag after the completion of drug analysis, across which she had placed her initials and the date that the drugs were returned to the envelope and the envelope resealed. She testified that the envelope was sealed when the laboratory received it from Officer Cox, and that it was resealed when an officer from the W hitevi lle Police Department retrieved it at the conclusion of the testing process.

Fin all y, Officer

Brandon Moss of th

e Whiteville

Police Department testified that he picked up the envelope from the TBI Crime Laboratory and brought

it to the Whiteville Police Department for storage. He identified his signature on the “request for examination” for m, and id entified the manila envelope as the same package that he had picked up from thecrime laboratory, transported to the Whiteville Police Department for evidence sto

rage, and then

brought, pursuant to reque st, into court for trial.

In presenting the t

estimony of th

ese witnesses, the

Stateoffered each

link in the chain

of the evidence, from Officer Cox’s receipt of it in the parking lot of the prison to its presentation in court. The defendant argue s, nonetheless, that the evidence should not have been admitted because of-12-

Officer Cox’s failure to testify

to having placed the defendant’s CCA identification card and the fie

ld test kit in the evidence envelope. Asser ting that it is

“beyond question” that someone opened and then resealed the envelope at some point between Officer Cox’s initial sealing of the envelope and Kay Sheriff’s receipt of it for drug analysis, the defenda nt con tends that the State failed to show ci rcums tances necessary to establish with reasonable assurance that the g reen leafy plant material discovered in his McDonald’s bag was the marijuana that was accepted into evidence at tria l.

We disagree. The St a te need not prove the identity o

f tangible evide

nce “beyo

nd all possibility

of doubt.” State v. Scott , 33 S.W.3 d 746, 760 ( Tenn. 2000 ) (citing St a te v. Holloman , 835 S.W.2d 42, 46 (Tenn. Crim. App. 1992)). Nor is it required to establish facts that eliminate all poss ibili ty

of tampering. Id. (citing State v. Ferguson , 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). Rather, “[t]he evidence may be admitted when the circumstances surrounding the evidence reasonably

establish the identi ty of the eviden ce and its i ntegr it y.” Id. (emphasis added) (citing Holloman , 835 S.W.2d at 46). Here, although Offic er Cox did not directl

y testify to having placed the field drug test kit and

the defendant’s

CCA identification

card in the enve

lope, he did testif

y to having performed a fie

ld test kit on the material before securing the bags for evidence. Kay Sheriff testified that the envelope was sealed when she received it, and did not appear to have been tampered with. We conclude, ther

efore, that the circum stances establish with reasonable

assurance the id

entity and integrity of the evidence at issue in this case,

and that, accor

dingly, the

trial court did

not abuse its discretion in admitting the evidence.

This issue is without m

erit.
IV. Ineffective Assistance of Counsel

As his final issue, the defendant contends that he receive d ineffective assistance of trial counsel. He argues that his trial counsel was ineffective for failing to object to the State’s use o

f his prior inconsistent statement, and for failing to adequately inve sti gate and discov er evidence in
su pport of his “retaliation” theory of defense. The State arg ues that the trial court did not err i n finding that the defendant received the effective assistance of trial counsel.

The defendant

raisedthe ineffective assistance of trial counsel as an issue in his motion for
a new tria l, and much of

the hearing on that motion was devoted to trial counsel’s testimony regarding her representation. Trial counsel testified that the defendant’s original position was that he “admitted bringing drugs into the prison,” but that he was not guilty because the CCA had failed to provide proper training. Trial counsel said that she told the defendant an d his f amily that the defense would not work, and continued to discuss with them other possible theories of defense. The defendant first told her of the grie van ce he had fil ed ag ain st A ndr ew J one s ap pro xim ate ly tw o da ys before trial, after the trial court’s denial of his motion for pretrial diversion. Trial counsel testified that their theory

of defense then “evolved” into showing that Jones had planted the marijuana in the McDonald’s bag to frame the d efendant, i n order to get him fired for having made the allegation against Jones. Trial counsel stated that there were some facts to support this theor y, including-13-

statements

that the defendant had

made to a fellow employee after his arrest to the effe ct that Jones had “set [him] up,” and the obvious “animus” that Jones felt toward the defendant.

Trial counsel admitted that she had not attempted to obtain a copy of the

defendant’s CCA personnel file to determine whether the grievance he claimed to have filed was inclu ded in his records. She explained that her previous experience with the corporation had led her to believe that CCA, with an eye to

potential future litigation, would not have recorded the specific details of the defendant’s grievance, and thus, that the Statewould be able to imp each her client

’s testimony w

ith the lack of detail in his records. Also, she had not wanted to “tip [the State] off” regarding her theory of defense. She disagreed that the report contained in the defendant’s personnel file, a copy of which
was apparently received as an exhibit at the motion for a new trial hearing, would have corroborated the defendant’s testimony, pointin g out that the CCA record contained only a statement that the defendant had announced th

at he was quitting, and that he did not want to talk about his reasons for doing so.

Trial counsel testified

that she had telep

honed the CCA

in an effort to

tal k to Jer emy H ens ley, the supervisor to whom the defendant claimed to have made his complaint. She ha d learned that Hensley had been transf

erred to a faci

lity in West Virginia. She had attempted to contact him at that faci lit y, buthad not been succ essful. She admitted that sh e had not request

ed a trial continu

ance in order to make further a

ttempts at contact with Hensley, and that she did not know what Hensley ’s testimony might have been if he had appeared at trial.

Trial counsel said

that she had, in a h

earing, objec

ted to the use of the defendant’s admission to Officer Cox. The tr

ial court had rule

d that th e State would not be allowed to use the statement in its case-in-chief, but that it would be allowed to impeach the defendant with aredacted form of the statement should he offer inconsistent testimony at trial. She had not objected to the redacted version of the defendant’s statement becau se s he had thought tha t it was in the defe

ndant’s best interest, “essentially

a compromise with r

eality,” in that it eliminated his reference to having brought drugs into the facility on p revious occasion

s. Trial counsel thought that the defendant’s statement to Officer Cox had clearly implied an admission to having brought the drugs into the prison on May 14. There was “never any confusion,” she said, “as to what admission the Defendant made when he
was questioned by Officer Cox regarding the incident where he wa s c aught with marijuana at the prison.” As far as her initial understanding that the defendant’s statement had been that he had done it twice before, rather than that this was only the second time he had done it, she said that she “may have misunderstood what the message was on [her] answering machine.” Although counsel , o n appeal, refers to Officer Cox’s reciting an “invented statement” of the defendant, we conc lude that it was, ins

tead, a re dacted ve rsion of w

hat the de fendant h ad told Cox.

Trial counsel further testified that she had advised

the defendant of his right to testify, and that she had informed h

imthat his admission to Officer Cox could be used against him if he offered contrary testimony at

trial. She said tha

t the defendant ha

d told her early

in her representation that he “brought drugs in to bring in extra money, and he had don e it t wo other times.” Sh e also-14-

remembered

a conversationin which he indicated that he had admitted to a police officer to having brought the drugs into the prison.

Trial counsel admitted that she had not interviewed or attempted to call Rosa Robinson, the shift supervisor on duty on May 14, 1999, as a witness in the defendant’ s case. She had contacted eachpotential witness whose name had been p rov ided by the defendant. The defendant had not mentioned Rosa Robinson’s name, or told her that Robinson had been present during the incident at the prison.

The defendant

claimed that his trial counsel never spoke to him about her decision to allow the State to “recra

ft” his statement to Officer Cox to remove any reference to his prior bad ac ts. He also claimed that he told trial counsel about Rosa Robinson prior to t rial, but c ounsel failed to interview her or call her as a witness. He admitted, however, that he had been giv

en an opportunity at trial to provide the names of any other witnesses that might be needed, and tha t he had failed to mention Robinson’s name. He further admitted that Robinson’s testimony wou ld have be en essentially the same as that provided by Jones.

On January 9, 2001, the

trial court issued an order denying the defendant’s motion for a new trial. The trial court found, inter alia , that no prejudice had resulted from trial counse

l’s failure to investigate

the defendant’s personnel file or to reques

t a continuance to locate Jeremy Hensley, sinc e the personnel file c

ontained no refe

rences to the all

eged grieva

nce, and the def

endant was able t

o testify at trial about Jones’s alleged behavior and animosity towards him. The court further found that trial counsel was not de ficient for failing to object to the revision of the defendant’s prior inconsistentstate m ent introduced at trial. Consequently, the trial court found the defendant’s allegations of

ineffective assistance of trial counsel to be without merit, and denied his motion for a new trial.

The fin din gs of fact mad e by t h e trial court are conclusive on appeal unless the evidence preponderates against those findings. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). “Moreover, factual question s that invo lve assessing the credibility of witnesses, or the weight and value to be giventheir testimony, are matters of re solution by the trial court.” Id. We review the trial court’s application of law to th e facts, however, de novo , with no presumption of correctness. Id. We review the issue of ineffective assistance of counsel, which involves mixed questions of fact and law, de novo , with a presumption of correctness accorded to the trial court’s findings of fac t. Fields v. State , 40 S.W.3d 450, 458 (T enn. 2001); Burns , 6 S.W.3d at 461.

In order to succeed on a claim of ineffective assistance of counsel, the defendant bears the burden of showing

both that his

counsel’s performance was deficient, and that counsel’s deficient performance

prejudiced the ou

tcome of his case. See Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L . Ed. 2d 674 (1984); see also State v. Taylor , 968 S.W.2d 900, 905 (Tenn. Crim. A pp. 1997) (no ting that same standard for determining ineffective assistance of counsel that is applied in federal cases also applies in Tennessee). Since a defendant m ust meet bo th prongs of the test in order

to succeed

on a claim of ineffective assistance of counsel, failure to show either-15-

deficient performance or resulting prejudice will result in a fai

lure toestablish his claim. See Henley v. State , 960 S.W.2d 572, 580 (T enn. 1997); Goad v. State , 938 S.W.2d 363, 370 (Tenn. 1996).
Here, the defendant has not shown prejudice resultin g from trial counsel’s failure to interview potential witnesse s or t o investigate his personnel file, and has not shown either deficient performance

or resulting prejudice in trial counsel’s failure to object to the introduction of his prior inconsistentstatement. Despite his allegations that Jeremy Hensley a nd Rosa Robinson would have offered testimony fa

vorable to his cas

e had trial counsel interviewed them or called them to testify at trial, the defendant did not present the testimony of either of these witnesses. Without any proof
as to the testimony that these witnesses would have offered at the trial, at

the hearing regarding the alleged ineffective assistance of trial counsel, the def endantcannot demonstrate that he was prejudiced

by their failure to be called on his behalf. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We agree wit h the trial court that the defendant was not prejudiced by trial counsel’s failure to

investigate his CCA personnel file, since the file did not contain the grievance he allegedly filed against Jones, and thus would not have provided any corroboration for his defense the ory. We also agree

withthe trial court tha

t trial counsel wa

s not deficient fo

r failing to obje

ct to the redacted version of the defendant’s statem ent that was used to impe ach his testimony

at trial. The record shows that trial counsel raised an objection to the statement in a hearing, resulting in a ruling by the trial c

ourt that the state

ment would be admiss

ible only for

impeachment purposes. The requirements

for admiss ion of the s tatement w ere met by the St ate’s quest ioning of the defendant
on cross-examination

, and his denial of h

aving made the s

tatement. Thus, there was no basis upon which trial counsel could renew her objection to the statement.

As for the alleged

illogic of the defendant’s testifying, and opening the door to testimony as to his admission to Officer Cox, there is a reverse side to the defendant’ s argument. Only through his testimony c

ould the defendant attempt to deflect and explain the prosecution testimony that he
was caught trying to smuggle marijuana into the prison, that he fled the scene, tried to evade capture by the police, and wh y Andrew Jone s would have a reason to give false testimony. Given the prosecution’s proof and the defense theory, we cannot conclude that

no competent coun

sel would have determi ned that the defendant should testify. See Provenzano v. Singletary , 148 F.3d 1327, 1332 (11th Cir. 1998); Waters v. Thomas , 46 F.3d 1 506, 1512 ( 11th Cir. 1 995) (en b anc). We conclude, therefore, tha

t the trial court di

d not err in

fin ding that the def

endant failed to m

eet his burden of demonstrating ineffective assistance of trial counsel.

This issue is without merit.-16- CONCLUSION

Based on the foregoing reasoning and authorities, w

e affirm the judg

ment of the trial c

ourt.

___________________________________ ALAN E. GLENN, JUDGE