IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT NASHVILLE NOVEMBER 1999 SESSION

STATE OF TENNESSEE, * No. 01C01-9903-CC-00110 M1999-00003-CCA-R3-CD Appellee, * RUTHERFOR D COUNTY VS. * Hon. J. Steve Danie l, Judge ROBERT L. MALLARD, * (Possession of Drug Parap hernalia) Appellant. *

For Appellant : For Appellee : Brion J. Payne Paul G. Summers Assistant Public Defender Attorney General & Repor ter 201 West Main Street, Suite 101 Murfreesboro, TN 37130 Marvin E. Clements Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243 Paul A. Holcombe, III Assistant District A

ttorney 303 Rutherford County Judici al Building Murfreesboro, TN 37130

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE 

# FILED
January 13, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk2 OPINION The defendant, Robert Lee Mallard, w as convicted of possession o f drug paraphernalia, a Cl ass A misdemeanor. Tenn. Code Ann. § 39-17-425. The trial court imposed a jai l sentence of eleven months and tw enty-nine days wi

th a seventy-five perce nt minimum service req uirement. Fines totaled $750. 00.

In this ap peal of r ight, the defend ant prese nts two issu es for revi ew: (I) whether the tri al court erred by deny ing the defendant's motion to dismiss based on th e state's loss of evidence; (II) whether the tri al court erred by faili ng to exclude evidence of the defendant's prior drug-related convictions.

We find no error and affirm the defendant's conviction.
On July 27, 1997, Detectiv e Robert Anthony Prestini nzi and Officer Chuck Barnes, both with the narcotics division of the Rutherford County Sheriff 's Office, were conducting sur veillance of a suspected dr ug house on Bradyvil le Pike. At approximately 9:15 P. M., the defendant drove a vehi cle into the drivew ay, parked, and walked inside the res idence. A female passenger remai ned in the car. The defendant stayed inside for a few mi nutes and then returned to his c ar. The defendant did not appear to be carry ing anything either

when he entered or when he left the house.

After the defendant returned to the car, he traveled east on Bradyville Pike. Detective Pres

tininzi and Officer Barnes began pursuit in an unmarked vehicle. Detective Prestininzi paced the defendant's vehicle and concluded that it was being driven at a higher rate of speed than the posted speed limit. Officer Barnes, who did not look at the speedometer, also believed that the defendant was traveling at a rate above the speed limit. When the d efendant made an abrupt turn from Rutherford Boulevard onto Kensington Drive, Detective Prestininzi activated his siren and lights. At trial, Detective Pr estininzi explaine

d that he stopped the car for3 speeding, but conceded that he w as also motivated by hi s belief that the defendant had just engaged in an il legal drug transacti on.

Detective Prestininzi approached the vehicle an d spoke with the defendant, who was still seated in the driver's

seat. Officer Barnes went t o the passenge r side of t he vehicle and spok e with the f emale pa ssenger. Detective Prestininzi testified that he asked for and received the defendant's consent to conduct a search of the vehicl e. Officer Barnes testified that he heard the defendant give consent for the sear ch. The officers recovered w hat appeared to be a crack pipe from the center con sole. Detective Pres tininzi testified that the defendant admitted that the pipe belonged to him, that he had an addiction to crack cocaine, and th at he had smoke d crack cocaine th e previous day. No ille gal drugs were found. Detective P restininzi issued the defendant a misdemeanor citation for possession of drug paraphernal ia, placed the pipe in an ev idence envelope, and secured i t in an evid ence lock er. Appro ximately o ne week be fore tria l, Detect ive Prestininzi discovered that the pipe was missing. During his testimony at trial, Detective Prestininzi was unable to produce the pipe, but drew a pictur e of it. Officer Barnes testified that the dr awing was an accur

ate depiction of the pipe recovered from the vehicle driven by the defendant.

At trial, the defendant testified that the car he was driv

ing on the day of the offense did not belong to him and that he had come into possession of the vehicle in Nashvi lle that morning. He cl aimed that the owner of the vehi cle, who died approximately five months before the trial, had a drug problem. He also contend ed that t he crack p ipe was not his, that he had ne ver seen it before t hat day, and that he never admitted to the officers that the pipe belonged to hi m. He testified that he went to the house under s urveillance in order to visit a friend. The defendant contended that he was not speedi ng and explained that the onl y objects he had in the car were some clothes that were in the trunk. He admitted that he consented to the search and also admitted that he informed the officers that he had a drug problem. He denied, h owever, having told the officers that he had used4 drugs the previous day, claiming that his last usage was one or two weeks before his arrest.

Before the trial, the state filed a notice of intent to use eviden ce under Tenn. Code Ann. § 39-17-424(2), w hich permits introduction of a defendant's prior drug-related offenses in order to establish that a particular object falls within the definition of drug paraphernali a. The defendant filed a motion in limine r equesting that the trial court hold a hearing outside the presenc e of the jury to determine whether the probative value of evidence of his pri or crimes outweighed the danger of unfair prejudice, as prescr ibed by Tenn. R. Evid. 404 (b). The defendant also filed a motion to dismiss based on the mi ssing crack pipe. Both motions were overr uled by the trial court.

I

Initially, the defendant contends that the trial court er red by failing to dismiss the case based on the state's failure to preserve evidence. More specifically, he clai ms that he was prejudiced by the loss of the pipe because he was unable to conduct tests for the presence of cocaine resi due. He points out that the absence of residue would hav e been favorable to his defense. H e also argues that the characterizati on of an item as drug paraphernali a is an issue for the trier of fact and that the absence of the pipe prev ented him from pointing out its l egitimate
uses. See Tenn. Code Ann. § 39-17-424(7). The state argues that the defendant has failed to establish that he w as prejudiced by the los s of the pipe.

In the landmark c

ase of Brady v. Maryl and , 373 U.S. 83 (1963), the United States Supreme Court ruled that a prosecutor has a dut y to furnish exculpatory evi dence to the defendant upon request. Ex culpatory evidence may pertain to the guilt or innocence of the accused and/or the puni shment which may be imposed if the accused is conv icted of the crime. State v. Marshall , 845 S.W.2d 228 (Tenn. Crim. App. 1992).5 Any "suppression by the prosecution of evidence favor able to an accused upon request vi olates due process where the evidence is material either to guilt or punishment, ir

respective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87. Thus, the duty to provide arises when the evidence is material, the evidence is favorable for the defense, and a proper request is made by the defendant for the production of the evi dence. See United States v. Bagl ey , 473 U.S. 667 (1985); Strouth v. State , 755 S.W.2d 819, 828 (Tenn. Crim. App. 1986). Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpat

ory evidence that w

ould raise a reasonable doubt ab out a defendant's guilt. United States v. Agurs , 427 U.S. 97 (1976).

In Arizona v. Young blood , 488 U.S. 51 (1988), the United States Supreme Court held that a cri minal defendant must show bad faith on the part of the state in order to establish a denial of due process for f ailure to preserve potentially useful evidence. In State v. Ferguson , ___ S.W.2d ___ (Tenn. 1999), where the police lost a videotape of the defendant's f ield sobriety tests, our supreme court rejected the bad faith requir ement articulated in Youngblood . In Ferguson , the defendant argued that the videotape could have supported his claim that he was suffering from a medical condition r ather than exhibiting s igns of intoxication. The supreme court cha racterize d the issu e as foll ows :

The analysis of both Brady and Agurs concerns the prosecut ion's sup pression of "plai nly exculpa tory" evidence. This strikes

a sharp contrast to the case under review wherei n the existence of the destroy ed videotape was known to the defense but where its true nature (exculpatory, inculpatory, or neutral) can never be determined. Ferguson , slip op. at 4-5.

In Ferguson , our supreme court concluded that the due process principles of the Tennessee Consti tution are broader than those enunc iated in the United States Constitution and that fundamental fairness, as an element of due process, requires that

the state's failure to preser ve evidence whic

h could be favorable to the defendant be evaluat ed in the context of the entire record. The6 balancing test is based upon the following factors:

(1) whether the state had a duty to preserve the evidence; (2) the degree of negligence involved; (3) the significance of the des troyed evidence, considered in light of the pr obative value and reli ability of secondary or substitute evidence that remains av ailable; and (4) the sufficiency of the other evidence against the defendant. Ferguson , slip op. at 9-10. If a tri al without the lost or destroyed evidence w ould be unfair, the trial judge may dismiss the charges, provide a jury instruction, or take other steps necessary to protect the defendant's right to a fair trial. Id . at 10. In Ferguson , our supreme court ultimatel y determined that the defendant had not been deprived of his right to a fair trial based on the l oss of the videotape.

The Ferguson factors lead us to conclude that the defendant here was not deprived of his rig ht to a fair trial based upon the loss of the pipe. Initially, the question is whether the state had a duty to preserve the pipe. W hile the exculpatory nature of the pipe is tenuous, at bes t, it is our view

that the state did have a duty to preserve it. At a mini mum, it was material to the preparation the defense.

As to the second factor, there has been no allegation th at the state's loss of the evidence was motivated by bad faith. From all appearances, the f ailure to preserve the eviden ce was the result of simpl e negligence.

The third factor addresses the si gnificance of the missing ev idence. The defendant argues that he was unabl e to test the pipe to ascertai n whether or not it contained cocaine resi due. Presumably, he woul d contend that if the pipe contained no cocaine residue, i t was not actually a

crack pipe. He has not, however, p resente d any evide nce of ot her legiti mate use s for the pipe. In o ur view, the loss of the pipe would not have prevented the defenda nt from submitting such evidence. He had a full oppor tunity to testify and to cross examine either of the arresting officers regarding other possible us es of the pipe. Furthermore, the7 defendant asserted at trial that he did not own the pipe. He claimed that it belonged to the owner of the vehicle. Given this, had the defendant received fa vorable test results as to the presence of cocaine or had the def endant presented credible alternate explanations, the defense would have benefitted li ttle.
Finally, we must c

onsider the sufficiency of the other convicting evidence. The testimony of De tective Prestininz i and Officer Barnes established that the defendant

arriv ed at a su spected

drug ho use. He

entered the home and left within a short time per

iod. The officers found the pipe in the cent er console beside the driver's seat. Detective Prestininzi testified that the defendant admitted ownership of the crack pi pe and conceded that he was addic ted to the use of illegal drugs. In our view, this was particul arly persuasive t estimony which favor

ed the state. We reach the same result here as our supreme court did in Ferguson . The defendant was not deprived of a fair trial due to the state's fail ure to preserve the pipe.

II

Next, the d efenda nt argues that his p rior convic tions sho uld not h ave been allowed into evidence pursuant to Tenn. Code Ann. § 39 -17-424(2). He contends that the trial court failed to first balance the probative value of the evidence against the danger of unfair pr ejudice.
Tenn. Code Ann. § 39-17-402 defines d rug paraphernalia as follows: "Drug paraphernalia" means al l equipment, products and materials of any kind w hich are used, intended for use, or designed for us e in planting, pro pagating, cultivat ing, growing, harvesting, ma nufacturing, compounding, converting, produ cing, processing, p reparing, testin g, analyzing, packaging, repackaging, stori ng, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body, a controlled substance as defined in subdivision ( 4). "Drug paraphernali a" includes, but is not limited to: * * * (C) Objects used, intended for use, or designed for use in ingesting, inhali ng, or otherwise i ntroducing marijuana, cocaine , hashish , or hashi sh oil into the huma n body,8 such as: (i) Metal, acryl ic, glass, stone or pl astic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls . .

. . Tenn. Code Ann. § 39-17-402(12).

To assist in the determination of whether specific items fall within the above definition of drug parapher nalia, the legislature enacted Tenn. Code Ann. § 39-17-424, which provides in relevant part as follows:

In determining whether a particular object is drug paraphernalia as defined by § 39-17-402, the court or other authority making such a determination shall in addition to all other log ically relevant factors consider the following: (2) Prior convictions, if any, of the owner or of anyone in control of the object for viol ation of any state or federal law relating to controlled substances . . . Tenn. Code Ann. § 39-17-424 (emphasis added).

The defendant asserts that evidence of prior convictions s ubmitted under Tenn. Code Ann. § 39-17-424(2) must satisfy the test for admis sibility articulated in T enn. R. Evid. 404 (b), which provides th e following:

Evidence of other crimes, w rongs, or acts is not admissible to prove the c haracter of a person in order to show actio n in conf ormity with the chara cter trait . It may, however be admissibl e for other purposes. The conditions which must be satisfied before allowing such evidence are: (1) The court upon request mus t hold a hearing outside the jury's presence; (2) The court must determine that a material issue exis

ts other than conduct conforming w ith a character trait and must upon request state on the r ecord the material issue, the ruling, and the reasons for admitting the evidence; and (3) The co urt must e xclude the evidence if its pro bative value is outweig hed by the danger of unfair prej udice. Tenn. R. Evid. 404(b). The state argues that the mandato ry language contained in Tenn. Code Ann. § 39-17-424(2) w hich provides that a cour t "shall" consider relevant prior convictions exempts such evidence from the mandates of Rule 4 04(b).

The state provided pretrial notification to the defense of its i ntent to introduce into evidence the defendant's two prior conv ictions for possession of drug paraphernalia and one prior c onviction for simple posse ssion of crack cocaine9 pursuant to Tenn. Code Ann. § 39-17-4 24(2). In response, the defendant fil ed a motion in limine asking for the procedural protections afforded by Rule 404(b). The transcript from the pretri al motions includes the follow ing exchange: The State: I think really the only other motion in this case, the State filed the same tw o motions that it had filed in Mr. Mallard's case that we argued bac k in the fall. We have given this notice of intent to use evidence under 39-17-424 . . . . Defense Counsel: As far as that statute, we did, I think, object the last time. And I under stand the court's position is that the statute is prett y clear as far as being admissible. The Court: Y

es sir. Y ou want to pr

eserve y our same objection. Defense Counsel: I would l ike to reserve that obj ection for appeal, your Honor. The Court: Sure . . . .
During the trial, the state called Elfreida Young, Rutherford County's Chief Deputy Circuit Court Clerk, to intro duce the prior judgments of conv iction. At the conclusion of her testimony the trial court stated as follows:

[I]n this particular case, because of a statutory requirement under 39-17-424, you can consider this testimony and this evi dence here and these convicti ons as to determine knowledg e of the drug paraphernalia, the subject matter of the particular charge. That's one of the factors that can be considered under that statut ory requirement. And that's the reason it's being allo wed . . .

.
The statute at issue, Tenn. Code Ann. § 39-17-424, was adopted by the Tennessee legislature i n 1989. No prior cases addr ess the statute. Rule 404(b) of the Tennessee Rules of Evidence bec ame effective in Tennessee on January 1, 1990. Therefore, the effective date of the statute pre-dates the Rules of Ev idence. The Advisory Committee C omments indicate that Rule 404(b) was drafted to follow our supreme court's pronouncement s in State v. Parton , 694 S.W.2d 299 (Tenn. 1985). In consequence, the basi s for Rule 404(b) pre-dates the statute. Given the lack of analysis of the statute and its relationship to the Rules of Evidence, we must consider traditional ru les of statutory interpr etation in resolving

any conflict between10 the statute and Rule 404(b).

The legislature has the author ity to establish rul es governing the admissibility of evi dence. Daughtery v. State , 216 Tenn. 666, 393 S.W.2d 739 (1965); Rust v. Griggs , 172 Tenn. 565, 113 S.W.2d 733 (1938). "The cardinal rule of statutory construction is to effectuate legislativ e intent, with all ru les of construction being aides to that end." Browder v. Morris , 975 S.W.2d 308, 311 (Tenn. 1998). If the intent can be deter mined from the plain language of the statute, we must conclude our inq uiry there. Storey v. Bradford Fur niture Co. , 910 S.W.2d 857 (Tenn. 1995). If the language is ambiguous and does not y ield a clear interpretation, we may

consult the legislati

ve history for gui dance. See Carr. v. Ford , 833 S.W.2d 68 (Tenn. 1992). There is no writt en legislative his

tory regarding Tenn. Code Ann. § 39-17-424. In our v iew, however, the plain language of the statute requires consideration of the prior convictions on the issue of whether the pipe f ell within the statutory

definition of drug paraphernali a. "Courts are restri cted to the natural and ordinary meani ng of the language used by the legislature in the statute, unless an ambiguity re

quires resort elsew

here to ascertain legis lative intent." Id

. Where the statute is clear in express ing the legislature's intent, there is no need to resort to auxiliary

rules of construction. Cou rts need only enforce the statute as written. The language

of the statute at issue is cl ear and unambiguous in its mandate that "the court or other auth ority making such a de termination shall " consider the prior conv ictions. Tenn. Code Ann. § 39-17- 424 (emphasis added). It was not, therefore, erroneous for the trial court to admit evidence of the defendant's prior drug-related c

onvictions under Tenn. Code A nn. § 39-17-424 without w eighing its probative value

against its prejudicial effect.
Moreover, it is axiomatic that a specific statute on a particular subject will govern a more general one. State v. Black , 897 S.W.2d 680 (Tenn. 1995). While Rule 404(b) of the T ennessee Rules of Evidence qualifies as a general rule on the admissibility of prior offenses, Tenn. Cod e Ann. § 39-17-424 specifically authorizes the admission o f prior drug offenses when the i ssue concerns drug11 paraphernalia.
Accordingly, the j udgment of conviction is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

_______________________________ John H. Peay, Jud ge

________________________________ Norma McGee Ogle, Judge