### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A pr il 12, 200 5

STA TE OF TEN NES SEE v. N ATH AN IEL C HAM PION

Direc t Appeal from the Circ uit Court for Coff ee C ounty No. 32,205 Charles Lee , Judge

No. M2004- 02143-CCA -R3-C D - F iled May 11, 2005

A Coffe e County

jury convicted the Def

endant, Nathaniel Champion, of the sale of a c ontrolled substance, c ocaine , and the tria l court sentenc ed the De fenda nt to three y ear s. On appeal, the Def endant c ontends that: (1) the e vidence is insufficient to susta i n his conviction for the sa le of

coca ine; an d (2 ) t h e t rial court erre d when it denied the Def endant’ s motion for dismis sal of

app oin te d c ou ns e l. F ind ing no re ve rs ibl e e rr or , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and J OHN E VE R E TT W I L L I AMS , J J ., joined.

Mar garet C. L amb , Tul lah om a, Tenn ess ee (at tria l and on app eal ) and L aura D

. R i d d l e a n d B. Campbell Smoot , Tullahoma, Tenne ssee ( on appea l) for the appellant, Nathaniel Champion.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a nd Re po rt e r; B re nt C. C he rry , A ssi sta nt A tto rn e y Ge ne ra l; C. Michae l L ay ne, District Attorne y Gene ral; Jason Ponder, Assistant District Attorney Gene ral, for

the appellee , State of Tenne ssee.

OP IN ION I. F acts
A jury convicted the Def

endant of the sale of a contr olled substance, c ocaine , and the tria l court sentenced the Def

endant to three y ear s in prison. The following evidence w as pre sented at the Def endant’ s trial : Vi rginia Elrod testified tha t Detec tive Br ent Perry asked he r to contac t the Def endant to buy

coca ine from him, so she called the Defenda nt on a pay phone, and the Def

endant ag ree d to meet her . Elrod testified that the De fenda nt arrive d in a blue ca r about twe nty

minutes afte r she c alled him, and she a sked him for six ty dollars worth of cra ck cocaine. Elrod testified that De te c tiv e P erry gave her sixtydo lla rs . Sh e sa id that th e De fe nd a nt w e nt i nto a g a s st a tio n, c a me back out, g ave her the cocaine, and she g ave him the sixt y dollars. She said that the c ocaine was not

wra pped in anything, a nd she g ave the cocaine to Detec tive P er ry

. S he said that ther e we re-2-

detec tives acr oss the street who w atche d the entire transac tion.

On cr oss-examination, Elrod testified t hat this was the first time that she ha d been c ontacted by the Tullahoma Police De partment. She said that she had pre viousl y met the Def

endant a bout thr e e or fo ur tim e s. She te sti fi e d th a t sh e c a lle d th e De fe nd a nt at hi s h ome , a ndsh e ha d obtaine d h is

nu mbe r thr ou g h a

frie nd . E lr odsa id that the De fe nd a nt an sw e re d the ph on e c a ll, sh e sp ok e wi th h im for a bout f ive minutes, a nd she told the Def endant that she “wa nted some roc k.” She said that, a t that time, she did not tell the Defenda nt how m uch cocaine she wanted. She testified that, when she met the Def

endant, she was we aring a recording device provided by the police. Elrod sa id that the po lic e g a ve he r s ixty

do lla rs to p ur c ha se dr

ug s, a ndsh e wa s n ot g ive n a ny oth e r m on e y

. She sa id that the police did not ask he r if she ha d any other money , and she wa s not searc hed by the police fo r o the r d ru g s.

Elrod testified that the De fenda nt arrive d at the g as station about t we n t y minutes after she had ca lled him, and she had not known what kind of car he would be driving. She testified that she

wa s a wa re that th e po lic e of

fi c e rs wo uldbe watc hin g a ny tr a ns a c tio n th a t oc c ur

re d. El ro d s a id tha t, about fiftee n minutes after the transac tion at the g as station, she met with police off icer s behind the g as station. She said that the police took he r to the police station, and she g ave the m the coca ine. Elrod testified that she ha s participate d in a tot al of two drug transac tions for the Tullahoma Police Depa rtment, but this transaction was he r first, and the second drug transac tion did not i nvolve the De fe nd a nt. She sa id that, af te r the se e ve nts , she ha s see n the De fe nd a nt on a co up le of oc c a sio ns

.

Detec tive J ason F err el l t est ified that, on Mar ch 15, 2002, he and Detec tive Perry met and had a c onversation with a confide ntial informant, Elrod. He said that, based on that conver sation, Elrod was g iven six ty

dolla rs , and they

place d a re cording device on her. H e testified that, a s she le ft the of fi c e , h e c he c ke d he r to e ns ur e that sh e ha d no na rc oti c s on he r, a nd , s pe c if ic a lly , h e sa id that he “ pa tte d he r poc ke ts, ” a nd De te c tiv e Pe rry a sk e d he r to e mpt y he r p oc ke ts. De te c tiv e F e rr e ll testified that he a nd Detec tive Perry dropped he r off

at the g as station. He sa i d t h at h e went to a b u i l d i n g a c r o s s t h e s tr e e t , a n d h e v i d e o t ap e d t h e t r a n s a c t i o n , a n d D e t e c t i v e P e rr y w a s r e s po ns ibl e for the a udio o f t he re cording device . He testified that he knew that Elrod was g oing to c all the Def endant, a nd she orde red sixty dollars worth of cra ck coc aine. De tective F err ell testified that he he ardEl ro d ma

ke the ph on e c a ll, bu t he didno t he ar h e r s pe c if icall y sa y the De fe nd a nt’ s n a me beca use he w as re sponsible for the videota pe.

Detec tive Fe rre ll testified t h at, about twenty minutes after

Elrod ca lled the Def

endant, he observe d a blue four- door vehicle, which the Def endant was driving
, arr

ive at the gas station. He said that he watche d Elrod approa ch the Def endant’ s vehicle, have a conver sation, and then the Def end an t ’s vehicle pulled up to the f ront doors of the g as station. Detec tive Fe rre ll said that the Def endant e ntere d the store a nd came back out a few minutes later with a ba g

. He s ai d t hat the Def endant then drove throug h the parking lot, and stopped brief ly at the phone booth whe re Elr od was located bef

ore le aving the par

king lot. De tective F err ell said, once the Defenda nt was out of the

are a, Elrod wa lked towar ds the building, a nd he and D etec tive Perry picked he r up. He s ai d that Elrod g ave him cre am-c olored rocks that he suspected were crac k cocaine, and he place d the roc ks-3-

i n an ev i d en ce b ag.

On cross-examination, Detec tive Fe rre ll testified t hat he has known the De fenda nt for seve n y ear s. He said that he has known Elrod for about one y ear , and she has not c onducted any other drug
transac tions in which he was involved. He said that Elrod approache d the pol ice and told them that sh e wo ulda tte mpt

to p ur c ha se na

rc oti c s f ro m t wo in di vi du a ls, on e of wh om w a s th e De fe nd a nt. Detec tive Fe rre ll said that he did not provide Elrod with the De fenda nt’s phone number, he did not know what phone number she w as ca lling, and he did not attempt to determine in whose name the phone number

was re g istered. He t es t i fi ed that, during this transaction, he c ould hear what wa s being said in the bac kg round, but he wa s not pay ing close attention bec ause he was ope rating the video re corde r. He said that he did not turn the video rec order off at any time during this transaction, and there was no splicing of the videotape . He sa id that the videotape f ocused on othe r vehic les, at

some points, beca

use he was not sure in what vehicle the D efe ndant would ar rive at the g as station. Detec tive Fe rre ll said that he did not run the license plate number on the Def endant’ s vehicle, a nd, there fore , he did not know to w hom the car was actua lly reg istered. He testified that he did not see any one else in the Def

endant ’s v eh i cl e. He sa id that, based on the vide otape, he did not see the
tr a ns a c tio n it se lf

oc c ur , a nd he c ou ld no t se e a nythi ng “ pa ss h a nd s. ” De te c tiv e F e rr e ll t e sti fi e d th a t, afte r he f inished rec ording , he and Detec tive Perry picked up Elrod, she g ave him the c ocaine , and he put the coc aine in the e vidence bag . He sa id that he did not chec k Elrod for othe r drug s after she g a ve him the c oc a ine

. He te sti fi e d that he didno t kn ow wh e n th e De fe nd a nt w a s a rr e ste d f or thi s incident, but he knew that it was not within forty -eig ht hours afte r the tra nsaction.

Br ent P erry , a detective with the Tullahoma Police D epartment, testified that, on Marc h 15, 2002, he wa s involved in a narc otics operation. He said that he was contac ted by Elrod and de cided to use her a s an informa nt. He explained that Dete ctive F err ell had a pr evious discussion with Elrod, and she told him that there w ere two individuals that she could p u rc h as e n ar coti cs fr om, one of whom was the D efe ndant. Detec tive Perry testified t hat, on Marc h 15, 2002, he met with Elrod at the police station and g ave he r six ty dollars. He sa id that he asked Elrod t o empty her poc kets, and Detec tive Fe rre ll conducted a patdown sea

rch of her to insure that she had no na rcotics on he r. He testified that he a nd Detec tive Fe rre ll drove Elrod to the g as st ation, dropped he r off , and proc eede d to set up surveillance acr oss the road.

Detec tive Perry

testified that, to his rec ollection, Elrod had c onversations with som e other people while she was a t the g as station, but she did not ha ve close contac t with any one but the Def endant. He said that Elrod had the Def endant’ s phone number, and she ca lled the Def endant’ s
re sid e nc e . H e te sti fi e d that, app ro xima te ly thi rt y min ute s la te r, a blu e Ol ds mob ile fo ur -d oo r v e hic le

arrived, and Elrod a

pproac hed the driver’s side w indow, wh er e she had a c onversation with the Def endant. He sai d t h at t h e vehicle then pulled to the fr ont of the g as station, and the De fenda nt exit ed the vehicle and enter ed the g as st ation. Detec tive Perry testified t hat t he Defenda nt was in the
sto r e f o r a s h o r t ti me , r e tu r n e d to h is v e h ic le
, d r o v e ar o u n d th e p ar k in g lo t, s to p p e d
, a n d th e n had a short conve rsation with Elrod. He sa id that the Def endant then exit ed the par king lot and dr ove
awa y toward his re sidence

.-4-

Detec tive Perry

testified that, base d on the audio re cording of the tra nsaction, he did not hea r Elrod have a conversation with any one else about selling drug s. He testified tha t Elrod broug ht back

sever al small cre am-c olored roc ks to the police. He said that, when he and De tective F err ell picked up Elrod from the pa

rking lot, she handed the rocks to Detec tive Fe rre ll, who pla ced the items in an evidenc e bag . Detec t i v e P er ry said that, when the y returne d to the police station, he sea led and initialed the evidenc e bag . He sa id that he m ai l ed t h e narc otics to the Tennesse e B urea u of I nvestig ation (“TB I ”) Crime L ab. He testified that the TBI sent the evide nce ba ck to him, and he put the evidenc e into locked stora g e, so that the e vidence could be he ld safely until trial. De tective Per ry testified that, throug h a court order, the Def endant requested that the narc otics be sent to an independe nt laboratory

for a naly sis. He said that he se n t the nar cotics, in the evide nce ba g , to an ind e pe nd e nt l abo ratory a nd that the e vid e nc e wa s in a ro c k form, e ve n a ft e r the TB I c omp le te d th e ir

a n a l ys i s

. D e t e c t i v e P e rr y s a i d t h a th e d i d n o tr e c e i v e a n yt h i n g b a c k f r o mt h a tl ab o r a t o r y.

On cr oss -e x amination, Detec tive Perry testified that either

he or D etec tive Fe rre ll put the body wire on Elr od. He sa id that he and De tective F err ell drove Elr od to the g as station, dropped her of f, and pa rked dire ctly

acr oss the street. He testif i ed that he took the equipment f rom the vehicle a nd went to the third floor of the building a cross the stre et. Detec tive Perry testified that he had visual conta ct with Elrod during most of the transac tion. He said that he did not have anything that e nh a nc e d his vis ion , suc h as bin oc ula rs

. De te c tiv e Pe rry te sti fi e d tha t he co uldno t sp e c if ic a lly
state the exact moment that the transac tion occurr ed, but a transaction did take pla ce. H e testified that the building whe re he rec orded the transac tion is about t hirty -five y ards from the front of t he g as station. Detec tive Perry

sai d t h at t here wer e two tra nsactions that wer e supposed to occ ur that

e ve nin g , b ut the ph on e c a ll that El ro d ma de wa s to the De fe nd a nt, no t th e se c on d p e rs on . H e sa id that, on the audio tape , he could he ar the male voice , but he did not know exactly what wa s said.

Detec tive Perry

testified that the De fenda nt approa ched E lro d tw o ti me s d u rin g the oper ation. He sa id that, after

the exchang e, the tape was stopped, a nd he beg an to pac k up the equipment. He testified that he pr ocee ded to drive to the g as station, and Elrod ha nd ed t h e co ca i n e to Dete ctive Fe rre ll, who placed it in a ba g and ca rried it to the police station. Detective Per ry said that Elrod was
not searc hed rig ht after

she hande d the police the c ocaine , but was searche d befor e the ne x t purcha se, which wa s unrelate d to the Def endant and occur

red about an hour later. He testified that he did not take the ba g that contained the cocaine to the TB I laboratory , and he did not re member if he picked up the evidenc e fr om the labora tory

. He said that he packed the evidence bag and sent the na rcotics to the independe nt laboratory . Detec tive Perry t es t i fi ed that the drug s came back to him, but he

a g re e d th a t th e re wa s n oth ing on the pa c ka g e that di re c te d it to the Tu llaho ma

Pol ic e De pa

rt me nt, and he did not speak with a ny one from the independe nt la boratory

. Detec tive Perry testified that the

e vid e nc e wa s prev iou sly

in r oc k- lik e fo rm , b ut i s n ot i n th a t f orm a nymor e . H e sa id that, u nle ss something w as done to the narcotics at the i ndepende nt labora tory , it was the same coc aine that wa s purcha sed on Mar ch 15, 2002.

Adam Gr ay , a special ag ent and fore nsic chemist with the TBI
, testified t hat he rec eived a n
e vid e nc e ba g wi th the De fe nd a nt’ s n a me writt e n o n it on Ap ri l 5, 20 02
, a ndhe te ste d th e c on te nts of the ba g on Ap ri l 22 . H e sa id tha t th e e vid e nc e ba g wa s tape d a ndse a le d a ndc on ta ine d “ a loo se-5-

rock- like substance.” He testified that he perfo rm ed a pr esumptive and c onfirmatory test on the contents of the ba g , and he de termined that it was 0.2 g rams of c ocaine

.

On c ro ss- e xami na tio n, Ag e nt G ray te sti fi e d th a t he fi rs t pe rf ormed th e pr e su mpt ive te st, which employ s an ultra v i o l et l i gh t d evice . He sa id that he did not know if there was one rock or

sever al roc ks because the substanc e can brea k apart during handli n g. He testified that the confirmatory

test is spe cific to c ocaine

. He testified that he weig hed all of the rock- like substance in the evidenc e bag
, not the bag itself, to de termine how much cocaine was there , and he sa id that he c a nn ot t e st the e nti re sa mpl e be c a us e he le a ve s a po rt ion of the su bs ta nc e in c a se a ny re te sti ng is neede d. He sa id that, after the tests wer e per formed, he put the evidenc e int o a vault and prepa red the re su lts

.

Ba sed upon this evidence , the jury convicted t h e Defenda nt of the sale of a contr olled substance, c ocaine

.

II. Ana lys is

On app e a l, the De fe nd a nt c on te nd s th a t: ( 1) th e evide nc e wa s in su ff ic ie nt t o s us ta in h is conviction for sa le of co ca i n e; an d (2 ) that the trial c ourt err ed whe n it denied the De fenda nt’s motion for dismiss al of a

ppointed counsel.

A. Suf fi ciency of the Evidence

On appe al, the Defenda nt contends that the e vidence is insufficient to support his conviction for sa le of c ocaine . Specifica lly , he asse rts that there was insuffic ient evidenc e to prove that he wa s inv olv e d in the sa le of

c oc a ine be c a us e the inf

orma nt, El ro d, ha d c on ve rs a tio ns wi th o the r p e op le d u r in g th e tr a n s a c ti o n ti me p e r io d
, a n d th e p o li c e d id n o t v is u a ll y

o b s e r v e h im

c o n d u c ti n g a

d rug tr a ns a c tio n. Th e Sta te c ou nte rs that th e e vid e nc e wa s su ff ic ie nt t o s up po rt

the ve rd ic t.

When an ac cus ed challeng es the suff iciency of the e vidence , an appe llate court’s standard of re view is whether
, afte r considering the evidenc e in the light most fa vorable to the prosec ution,

a ny ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t. T e nn . R. Ap p. P. 1 3( e ); Jac ks on v. Vi rg ini a , 443 U.S. 307, 324 (1979); State v. Carter , 121 S.W .3d 579, 588 (Tenn. 2003); State v. Smit h, 24 S.W .3d 274, 278 (Tenn. 2000) . This rule applies to f ind ing s o f g uil t ba se d u po n dir e c t e vid e nc e , c ir c ums ta nti a l e vid e nc e , o r a c omb inatio n o f b oth dir e c t a ndc ir c ums ta nti a l e vid e nc e . St a te v. Pe nd e rg ra ss , 13 S.W .3d 389, 392-93 (Tenn. Crim. App. 1999).

I n d e te rm ini ng the su ff ic ie nc y of the e vid e nc e , th is Cou rt sh ou ld n ot r e -w e ig h o r r e -e va luate the evidenc e. State v. Matthew s , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

. This Court may

n o ts u b s t i t u t e i t s i n fe re n ce s fo r t h o s e d ra wn b y t h e tri er o f fa ct fr o mt h e e v i d en ce

. S t at e v

. Bu ggs , 99 5 S.W. 2d 10 2, 10 5 (T e nn

. 19 99 ); L iaka s v. Sta te , 286 S.W .2d 856, 859 (Tenn. 1956) . Questions-6-

c on c e rn ing the c re dib ili ty of the wi tn ess es, the we ig ht andva lue of the e vid e nc e , a s w e ll a s a ll fac tual issue s ra ised by

the evidenc e ar e re solved by the trier of

fac t. L iakas
, 286 S.W .2d at 859. This Court must aff

ord the State of T ennesse e the strong est leg itimate view of the e vidence contained in the rec ord, as well as all rea sonable infere nces which may be dra wn from the e vidence

. State v. Evans
, 838 S.W .2d 185, 191 (Tenn. 1992). Be cause a verdict of guilt ag ainst a def endant removes the presumption of innoce nce and raises a presumption of g uilt, the convicted criminal de fe nd a nt b e ars the bu rd e n o f s ho wi ng that th e e vid e nc e wa s le g a lly ins uf fi c ie nt t o s us ta in a

g uil ty verdic t. I d.; see State v. Car ruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000)

.

A c on vic tio n may

be ba se d e nti re ly on cir cum st a nti a l e vid e nc e wh e re the fa c ts a re “ ‘s o clea rly interwove n and connected that the finger of guilt is pointed unerringly at t he Defenda nt and the Def endant a lone.’” State v. Reid, 91 S.W .3d 247, 277 (quoting State v. Smit h, 868 S.W .2d 561, 56 9 ( T e n n

. 1 9 9 3 ) )

. T h e ju r y d e c id e s th e w e ig h t t o b e g iv e n to c ir c u ms tan ti a l e v id e n c e a n d “[t] he infere nces to be draw n from such evidence
, and the ex tent to which the cir cumstance s are consistent with guilt and inconsistent with innocenc e, ar e questions primarily for the jury .” Mar able v. State, 203 Tenn. 440, 313 S.W.2d 451, 457 (1958) (citations omit t ed ). W hile single fac ts, considere d alone, may count for littl e weight, when all of t he facts and circ umstances are taken tog ether , they

can p o i n t t h e fi ng er of

g uilt at the Defe ndant bey ond a re asonable doubt. State v. Wi lliams, 657 S.W .2d 405, 410 (Tenn. 1983) . Further, “ [t ]he infere nces to be draw n from such evide nce, and the extent to which the ci rc u m s t an ces are c onsistent with guilt and inconsistent with innocence are q u e s t i o n s

. . . f

o r t h e j u r y. ” M ar ab l e , 2 0 3 T e n n

. 4 4 0
, 3 1 3 S

. W

. 2 d a t4 5 7 ; s e e a l s o S t a t e v

. G r e g o r y, 862 S.W .2d 574, 577 (Tenn. Crim. App. 1993)

.

Th e jury fo un d th e Defen da nt g uil ty of the sa le of

a c on tr oll e d s ub sta nc e pu rs ua nt t o Te nn e sse e Cod e An no ta te d s e c tio n 3 9- 17 -4 17 . T hat se c tio n s ta te s th a t a n in div idu a l is g uil ty of thi s crime w hen he know ingly sells a controlled substance. We conclude that the evidence as prese nted throug h the testimony

of the State’s w itnesses and the vide otape of the drug sale is more tha n adequate to support the defe ndant’s convic tion. The informant, Elrod, te stified that she ca lled the Def endant, a nd she aske d him to meet her at the g as station. Elrod said that the Def endant a rrived, g ave he r t he cocaine in exchang e for the money . Detec tives Perry and F err ell both testified that they watche d the entire transac tion from acr oss the street. They rec orded the events, and, althoug h they could not see the exact transac tion be cause it oc curr ed from inside the vehicle, they wer e able to see and re cord the Def

endant pull up to the g as station and g o into the store. They saw the D efe ndant

c ome ou t of

the sto re , dri ve to w he re El ro d w a s lo c a te d, a ndthe y he ardc on ve rs a tio n d e a lin g wi th the sale of narc otics. The detec tives then met with E lrod, and she g ave the m the cocaine that she ha d

rec eived. Finally
, Ag ent Gray testified that he a naly zed the evidenc e in this case, and he conc luded that it wa s c oc a ine . A c c or din g ly , a ratio na l ju ry

c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a re a so na ble do ub t. T his iss ue is w ith ou t me ri t.

B. Motion to Withdraw

Ne xt, the De fe nd a nt cl a ims that the tr ia l cou rt abu se d it s d isc re tio n b y re fu sin g to a llo w h is attorney to withdraw from his c ase, and he w as pre judiced as a

result of the tria l court’s re fusal. The-7-

State counter s that the trial court properly denied the D efe ndant’s motio n t o remove appointed counsel, a nd the Def

endant wa s not prejudiced by this action.

Both the U n it e d

St ate s an d

T e n n e ssee Constitutions g uara ntee a n indige nt criminal defe ndant the rig ht to assistance of a ppointed counsel at trial. See U.S. Con s t . amend VI ; Tenn. Const. art. I § 9. Howeve r, t h e S i x t h Am endment’s protection includes no g uara ntee of the rig ht to a

m eaning ful relationship between a n acc used and his counse l, whether counsel be appointed or
reta ined. Morris v. Slappy , 461 U.S. 1, 14 (1983); State v. Carr uthers, 35 S.W.3d 516, 546 (Tenn. 2000). Ne ither the fe dera l nor state constitutions requires that an i ndige nt defe ndant re ceive counsel of his choice , or counse l with whom the defe ndant enjo y s “s p ec ial rapport, confidenc e, or e ven a meaning ful relationship.” Carruther s, 35 S.W .3d at 546. The ba seline g uara ntee is one of ef fec tuve counsel, not pre fer

red c ounsel. I d.

Wit h respe ct to motions t o withdraw, the trial court may , upon g ood cause shown, permit the withdrawa l of an attorney appointed to repr esent a n indige nt defe ndant. Tenn. Code A nn. § 40-14- 205(a) . When a def

endant seeks to substitute counsel, he or she has the burden of establishing to the trial judg e’s sa tisfaction that “( a) the repr ese ntation being furnished by counsel is ineff

ective, inadequate, and f

alls bel ow the ra ng e of c ompetency expected of de fense counsel in criminal pr os e c uti on s, (b ) the a c c us e d a ndapp oin te d c ou ns e l ha ve be c ome e mbr oil e d in a n ir re c on c ila ble conflict, or ( c) the re ha s been a complete br eakdow n in communications betwee n them.” State v. Gi lmo re , 8 23 S.W. 2d56 6, 56 8- 69 (T e nn . Crim. Ap p. 19 91 ). Th e tr ia l c ou rt ha s w ide dis c re tio n in
matters re g arding the appointment and r elief of co u n s el , and its decision will not be set aside on appea l unless the defe ndant shows an abuse of discr etion. State v. Rubio, 746 S .W.2d 732, 737 (Tenn. Crim. App. 19 8 7 ). Further, the de fenda nt must demonstrate that he wa s prejudice d by the trial cou r t’ s d e n ia l o f

th e mo ti o n to w ith d r a w

. Se e St a te v

. B r a n a m, 8 5 5 S. W. 2 d 5 6 3
, 5 6 6 ( T e n n. 1993).

The rec ord ref

lects that, at the hearing on the motion, the Def endant alleg ed sever al re asons wh y app oin te d c ou ns e l sh ou ld b e a llo we d to w it hd raw fr om the re pr e se ntatio n o f the De fe nd a nt. Th e tr ia l cou rt c on sid e re d the se re a so ns a nda sk e d th e De fe nd a nt t o s pe c if ic a lly state wh a t le g a l ba sis

ex i s t ed t o re m o v e d ef

en s e c o u n s el

. T h e t ri al co u rtex p l ai n ed t o t h e D ef en d an tt h e f

o l l o wi n g:

[T] his lawy er y ou have now, y ou didn’t choose but just because y ou are not satisfied with her doe sn’t mean she is going to be re moved. You are g oing to have to show me that she it not prepa

red to try y our ca se. We’re g oing to ha ve a trial as quickly as
we c a n u nle ss y ou c a n sho w me ho w [Coun se l] is not pr e pa re d to try y ou r c a se . So fa r, the on ly

thi ng y ou ha ve tol d me is y ou do n’t li ke her. Yo u may be jus tif ie d in that, b ut tha t is no t a bas is fo r re mov ing he r as y ou r at torne y . Ia m g oin g to h a ve to be convinc ed that y ou can’ t ge t a fa ir trial wi t h t h i s - - with the public defende r’s office repr esenting y ou befor e I will remove a n y l aw y er fr o m the case . That’s the standard that I

use.

T h e t ri al co u rt t h en as k ed t h e D ef en d an tt h e f

o l l o wi n g:-8- THE C OUR T : .

. . We h a v e tw o q u e s ti o n s

. O n e , is th e p u b li c d e fende r’s of fi c e pr e pa re d to g o to tr ia l, andtw o, if no t, w hy no t? Thos e are the on ly qu e sti on s th a t I a m int e re ste d in tod a y

. I ’l l he ar y ou a s lo ng a s y ou wa nt t o
answe r either

of those two questions for me

. [DEFENDA NT]: Well, if [defense counsel] say s she is rea dy , I g uess we’ re
r e a d y.

T h e c o u rt t h en h ea rd fr o md ef en s e c o u n s el
, wh o s t at ed t h e f o l l o wi n g:

I met with [ the Def

endant] on Marc h 19th. We had a heate d discussion. I felt that it ended per

haps we ll enoug h that I could proceed as repr esenting him. I have be en in prac tice now since 1992, so I fee l I have e x perie nced e noug h with the clients that I can det er mine whether

or not the re lationship had broken down. O bviously , [t he Def endant] did not feel that way beca use he wrote this letter tha t is dated Marc h 19th. On our m ee t i n g wi t h h im [ the next week] he made no me ntion of a letter, w hich I

w a s s u rp r is e d w h e n I g o t b a c k to th e o f f ic e th a t th e le tt e r w a s th e r e a t th a t p o in t. We decide d not to file a m o t i o n to withdraw. We dec ided to wait. Mr. Conn, our investigator, spoke wi t h [ t he De fenda nt] ag ain quite at leng th y esterday afte rnoon. D u e t o t h e s a m e a l l e g a t i o n s b e i n g m a d e t h a tI w a s w o rk i n g w i t h t h e d i s tr i c ta t t o r n e y, that I was incompetent, essentially following along the line of thoug ht he had written in this l etter, w e wa ited until thi s morning. We had set a deadline as to whether or
n o t h e w o u lda c c e p t th e o f f e r o r w h e th e r o r n o t w e n e e d e d to p r o c e e d

. . . . [W] e decide d to fo ahea d and file a motion being that it seems we we re g oing to tria l, and at this point, we felt like it should be broug ht to the C ourt’s attention the ac rimonious rel ationship betwee n the [D] efe ndant and my self. The re ha ve bee n times that we arg ued . . . . We have discussed strate g y . We have discusse d entra pment. . . . Howeve r, af

ter be ing f airly veheme ntly

attacke d in the letter a s far as hi m say ing that I need to be disbarre d, I

don’t know h ow well that trial re lationship will g o, Your Honor.

After hearing the Def

endant, de fense counsel, a nd commen t s b y the State, the trial c ourt made the f

ollowing f

indings, a cknowledg ing that it was a diffic ult decision:

Now the Court makes the following finding s of fact based upon that which would have be en the pr oof had this matter g one to a f ull evidentiary

hearing. [The De fe nd a nt] r a ise s tw o is su e s. On e is that th e re i s a c on fl ic t be tw e e n th e pu bli c de fe nd e r’ s re pres ent ation o f h im i n th is c a se that w ou ld d isq ua lif y the m, anda s I explained to [ the Def

endant] befor ehand, a

conflict is a term of art. It doesn’t mean that th e re is a

pr ob le m, w hic h [th e Defend a nt] s a y s th a t th e re is, bu t th a t th e re is a situation that ex ists that would c al l i n t o question the loy alties of the attorney repr esenting the client. I n this case, the one that i s s et for tria l . . . the Court had-9-

hear d no evidenc e that ther e exists any conflict. . . . I

have not h ea rd any

evidenc e otherwise, a n d conseque ntly , the Court finds there to be no conf lict of interest that would call into question [defense counsel]’s or the public de fende r’s off ice loy alties to their client. T here can, how ever , develop a conflict that, a lthough the pe rson’s loy alty may not be ca lled into que stion, their vigor with w hich they would proce ed

can be aff ecte d by the rela tionship betwe en the de fenda nt and appointed c ounsel, and that is the ba sis of

[de fe ns e c ou ns e l’ s] mo tio n. I t is a lso , a s [th e De fe nd a nt] p oin ts out, a cause for conce rn wit h him and which is the basis of his pro se motion, as he say s he has some que stion as to whether or not [ defe nse counsel] is doing as g ood a job a s he wo uld ho pe that sh e wo uld do

. No w [the De fe nd a nt], un fo rtun a te ly , is in the po sit ion that he do e s no t g e t to se le c t his a tto rn e y . H e is i nd ig e nt, a ndhe ha s to take whic hever at t o rn ey

that the Court fee ls is best qualified to repre sent [the De fe nd a nt]. No w c ur

re nt R ule 13 , a s w e ll a s the st atu te cre a tin g the pu bli c defe nder’ s office , require s - - a nd it is not discretionary with the C o urt unless the Court finds some rea son, but it requires that the public defende r’s off ice be appointed in indigent ca s es. It say s “shall.” It doesn’t say “may ,” and unle ss the Court finds g oo d c aus e, it has b e e n th e pr a c tic e of thi s Judg e to a lw a y s a

pp oin t th e pu bli c defe nder’ s office unless there is e ither (a) a conflict or ( b) that there is a g ood rea son so that the ec onomy

of the situation is such that other c ounsel should be appointed, so [t he De fenda nt] doesn’t have any choice . He g ets the public de fe n d er ’s office. Now if t h e p u b l i c def

ender ’s offic e is not perf orming as they

should, then [t he Def endant] has a right to be he ard by the Court, but the question which the Court has befor e it is – and as I

tried to state it at the beg inning of t h i s h earing so e very one would know how the Court is focuse d – (1) I s the public defe nder’ s office prepa red to g o to tria l, an d (2) if no t, wh y ?

. . . The Cou rt fi nd s tha t [ de fe ns e c ou ns e l] a s w e ll as other me mbers of the public defe nder’ s office has investig ated this ca se as we ll as can be investigated.

[Defense counsel] didn’t e ver indicate to the Court that she either w ould not

or c ou ld n ot f

oll ow the ins truc tio ns of he r c lie nt. Th e ba la nc e wh ic h th e Cou rt mus t do in these situations is on the o n e hand, we have a man who has be en in jail for

a l m o s t t w o y e ar s

. W e h a v e a c a s e t h a t h a s b e e n o n t h i s C o u r t ’ s d o c k e t f ora lmo st tw o y e ars , a nd fo r [the De fe nd a nt], on the oth e r sid e of that c oin is [th e De fe nd a nt’ s] de sir e to h a ve the a tto rn e y that he wo uldfe e l mo re c omf orta ble wi th. Wel l, the ta il do e sn ’t wa g the do g , a ndif

thi s Court w e re to a llo w [th e De fe nd a nt] t o s e le c t y e t a third attorney

beca use of e ither threats he has made or letters he has written, then the prec edent would be set throug hout all the courts of this land that all they would need to do if they

wer en’t satisfied w ith the lawy er that was appointed to the m is call them dirty names a nd write a

dirty letter or thr eate n to turn them in to the B oard, a nd the J udg e is g oing to turn around and appoint somebody else. That would ree k utter and total chaos with the court sy stem.

. . . this Court feels that this balance certainly g oes to deny ing the pro se motion to appoint new counse l, deny ing the motion to wit hdraw

a s c ouns e l. G ive n th e fa c t th is c a se ha s b e e n s o o ld, g ive n th e fa c t th a t th e pu bli c-10-

defe nder’ s office say s they are rea dy , althoug h not nece ssarily willing, to pursue the defe nse as th e d efe ndant has instructe d, but they are capa ble and may

pursue that defe nse, the [D]efendant’ s motion as well as the motion of the public de fe n d er’s office are denied.

I n th is c a se , th e De fe nd a nt c le arl y sh ow e d h is mist

ru st of his tr ia l c ou ns e l, h ow e ve r, he did not demo n s trate that his counsel was failing to per form in the De fenda nt’s best interest, ha d a conflict of inter est, or wa s otherwise una ble to discharg e the task of repr esenting the Def endant. The Def endant ha s offe red no e vidence that counsel did not advise him fa irly or honestly

or that counsel was not pre pare d to proce ed with his trial. Although the tension betwee n the Def endant a nd counsel

was a ppare nt, communication betwee n the Def endant and counsel continued, and c ounsel stated that she was able and willing to proce ed with his trial. We cannot conclude that the trial court abused its discr etion by deny ing the Def endant’ s motion for appointed counsel to w ithdraw. Further, t he De fe nd a nt h a s n ot p re se nte d a ny e vid e nc e that the c ou rt ’s re fu sa l to c ha ng e his a tto rn e y re su lte d in prejudice to him. According ly , we c onclude that this issue is without merit.

III

. Conclusion

I n acc ordanc e with th e fo reg oing r easoning and authorities, we af firm the De fenda nt’s conviction and se ntence

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE