# FILED
March 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee , ) C.C.A. No. 03C01-9801-CC-00006 ) vs . ) Blount County ) REGINALD C.

JOHNSON ) Hon. D. Kelly Thomas, Jr., Judge

) Appellant

. ) (Delivery o f Cocaine) )

FOR THE APPE LLANT: FOR THE APPELLEE: SHAWN GRAHAM (Trial) JOHN KNOX WALKUP Asst. Dist. Public Defender Attorney General & Reporter 419 High Street Maryville, TN 378

04 ELIZABETH B. MARNEY Assistant Attorney General GERALD C. RUSSELL (on Appeal ) 425 Fifth Av enue North 125 E. Broadway Avenue Nashville, TN 37243 Maryville, TN 378

04 PHILIP MORTON

Asst. Di st. Attorney General 363 Court Street Maryvi lle, TN 37804

OPINION FILED: _____________ AFFIRMED
JAMES CURWOOD

WITT, JR., JUDGE2 OPINION

The defendant, Reginald C. Johnson, appeals from a Blount County Circuit Court jury convi ction of delivery of coca ine in excess of 0.5 grams, a Class B felony. The trial court impose d a R ange II sentence of fourteen years incarceration in the Tennessee Department of Corr ection an d impos ed the ju ryrecom me nded fine of $36,000. In this appeal, the defendant r aises the following issues: 1. W hether th e trial court erred in admitting a videotape of the defendant attempting to deal in drugs and in fa iling to grant a continuance once the video tape was r uled admissible; 2. whether the trial c ourt erred in adm itting a photograph which
a ssisted th e State in identifying the defendant although it had not been revealed to the de fense in pre-trial discovery; 3. whether the

p ublic defender’s office which r epresented the defendant at trial was hampered w ith a conflict of interests; 4. whether trial counse l wasineffective in failing to obj ect to the use of the chemical analyst’s testimony who only

teste d one of the six rocks of substance alleged to be cocai ne; and 5. whether the evidenc e was sufficient to support a c onviction of a Class B fe lony. After review of the record and of th e applica ble law, we affirm the judgment of the trial court.

On August 14, 1996, the Blount Me t ro Naracotics Unit depl oyed an undercover

agent to e ngage in th e control led buys of narcotic s in Bloun t County. The police wired him w ith an audio transmission dev ice and equipped his car with
a videocamera. While driving on West Fulton Street in Alcoa, he was approached3

byan individual in a w hite shirt a nd whi te cap whom the officer identified as the defendant. The agenttestified the defendant sold him six rocks of a substance for
a total of $120. This transaction w as the basis for

the indictment and conviction in the present case. A couple of hours after this transaction occurr

ed, the undercover agentmade a second visit to West Fulton Street

. The videotape record of the second visit shows

the same individual in the white shirt and cap w hom the agent again identified as the defendant. The second video segment provides a more ext ensi ve view of this indiv idual’s face. On this vi deo segment, the individual attempts to sell drugs to the ag ent for the second time. The jury view ed both tape segments.

Officer

Scott Johnson of th e Blount Metro Naracotics Unit was in control of the undercover operation on August 14. He received the six rocks from the undercover agent and submitted them to the TBI Crime Lab for ch emical analysis.

Officer

Johnson testified that he recognized the

seller on the first tape segmentas Reginald Johnson, a man wi th whom he had been acquainted since school days. After the undercov er agen t turne d over the contraband to Officer Johnson, the officer drove to the scen e and saw the man wearing the white shirt and cap. At trial he confirmed that this man was the defendant.

The TBI chemist who analyz ed the six rocks which weredelivered to the TBI Lab by Officer Johnson testified that she analyzed one of the r ocks and determined it to be cocaine base which is a Schedule II controlled subs tance. She testified that the combined weight of all the rocks was 0.7 grams. However, she did not chemically analyze any of the other five rock s, but the y were similar in composition and appearance to the one rock that was tested.

At the time this case was pending in the trial court, the Blount C ounty4

Public Defende r’s offi ce emplo yed Offi cer Johns on’s wife as a secre tary. Although the Public Defender’s Office represented the defendant in the tri al of this cause, this relationship to Officer Johnson was communica ted neither to the defendant nor to the trial court until after the trial . After the appointment of substitute counsel during the pendency of the motion for new tr ial, the new counsel amended the new trial motion and alleged a conflict of i nterest in the Public Defender’s Office.

The defense offered no proof. After th e guilty verdic t and a sentencing hearing, the trial court imposed the fourteen year incarcerative sentence and the fine that had been recommended by the jury.

I. The Second Video Tape Segment. The jury viewed the videotape se gment which depicted the un dercover agent’s first v isit to the transaction s cene. This videotape segment shows the agent’s transaction with the i ndividual wearing a white shirt and

white cap. Althou gh the agent testified that this i ndividual was the defendant, the tape does not clearly show the face of the individu al. T he second tape segment was made during a second visit to the scene appr oximately two hour

s later. As the trial court observed in the jury-out hearing

held pursuant to Tennessee Rule of Evidence 404(b), the second segment shows a more ex tensive view of the face of the person in the white shirt and cap who the undercover agent i dentified, once again, as the defendant. After the jury-out

hearing, the trial cour

t ruled that the second video seg ment was admissib le on the issue of identity.

During opening argume nt, defense counsel told the jury that “our theoryof the case is that it is not Reginald Johnso n [on the videotape], that it’s somebody

we don’t know who it is. It could be most anyone. But it is not Reginald Johnson.” This was the only defense theory revealed to the jury during the opening statement. Counsel summed up this theory by saying near the end of his statement, “And, again, I can’t ex press enough to you that th e positi on that we ’re5

taking is that it is not Mr. Johnson . . . . [I]t’s someone different.”

The defendant challenges the use of the sec ond tape segment as (1)
a viola tion of evidence Rul es 403 and 404 and (2) a contrav ention of his right to discove ry

under Tennessee Rule of Criminal Procedure 16(a)(1)(C ). He a ls o complains the trial court erred i n denying a continuance after the second seg ment
was ruled admissible. We first examine the objection based on the evidence rules.

Tennessee Rule of Evidence 403 auth orizes the exclusi on of even relevant evidence if “its probati ve value is substanti ally outweighed by the danger of unfair prejudice, confusion of the issues, or mislea ding the jury , or by considerations

of undue delay, wast e of tim e, or needless presentation of cumulat ive evidence.” Tenn. R. Ev id. 403. Under Rule 404, character evidence is generallyinadmissible “for the purpos e of proving action in c onformity with the character

or trait on a particular occasion.” Tenn. R. Evid. 404(a). The defendant asserts that the second video segment violates Rule 404 (a) because it sugges ts that the defendant is a drug dealer an d, forthat reason, has a propensity to commit the offense on trial. However, Rule 404(b) provides that evidence of “other crimes, wrongs, or acts” may be admissi bl e fo r purposes other than to show that the impugned person acted in conformit y with t he bad character trait. Under Rule 404(b), such evidence ma y be admissible if the trial court, a fter a jury-out he aring, determines that “a material issu e exists other than conduct conforming w ith a character

tra it” and that the probative valu e is not outweighed by the danger of unfair prejudice. Tenn. R. Evi d. 404(b). The comments to Rule 404 illustrate that the “other” mat erial i ssues that could support the us e of the evidence include “identity ( inc luding motive and common sche me or plan), intent, or rebut tal of accidentor mistake.” Tenn . R. Evid. 4 04, Advisory Comm’n Comments. After a jury-out hearing, the trial

court admitted the evidence based upon its finding that it was probative on the issue of identity and that it was not unduly prejudicial.6 The standard of appe llate revie w of the t rial court’s Rule 404(b) determination is abuse of discretion w here the trial court has s ubstantially complied with the procedural requir ements of the rule. State v. Dubose , 953 S.W.2d 649, 652 (Tenn. 1997).

The defendant complains that the second tape segment unfair l y prejudiceshim by depicting him as a drug dealer and, thereby, a person more likely to have sold drugs to the agent two hours earli er. He argues that, ev en if the evidence was pro bative of identity, ther e was no need to admit it dur ing the testimony

of the state’s first witne ss in its case-in-ch ief, th at ot her evidence identified the defendant as the seller, and that using the tape served only t o needlessly sully the defendant. The defendant citesno specific authority to support his argu ment that the evidence, even if prob ative of identity, w

as premature or unnecessary and that therefore the prejudice o utweighed the probative value. He cites State v. Bunch , 605 S.W.2d 227 (Tenn. 1980), for the general proposition that “the rule [of exclusion]

should not be circumvented by admitting evidenc e of another crimeto show identity . . . if the defendant admits that he committed the act cha rged

. . . or if the identity of the accused is established by other evidence and therefore, is no longer in issue.” Bunch , 605 S.W. 2d at 230.

This comment fr om Bunch does not tell us, howev er, when “the identity of the accused is establis hed by other evidence,” nor does it help us to determine if identity “is no lon ger in issue.” We know that in an ycriminal case, the bur den rests wi th the state to establish a defendant’ s guilt. No reasonable law
w ould impose a burden upon a party w ithout granting that par ty an opportu nity t o carr ythe burden. Absent some concessi on by the accused, the state has th e burden, and should be afforded the oppor tuni ty, of identifying the ac cused as the perpetrator in every

criminal case.

In Stat e v. Grego ry , 862 S.W.2d 574 (Tenn. Crim. App. 1993), the7

state addressed its burden of identify ing the defendant as the murderer and rapist byintroducing “a positive id entific ation of the defendant’s handp rint and his fingerprint”

on and near the bed in the victim’s home where her body w as tied while she was raped, tortured, and killed. Id . at 576. The state also used DNA evidence which was “consistent with the defendant’s having been the perpetrator.“ Despite this proof, the Gregory court approved the use o f evide nce of the defendant’s attempt to enter theapartment of another female on the day prior to the murder. Id

. at 578. The court observed that, at the time the state offered the putative victim’s evidence, the “state still had to prove [the defendant’s] i dentity as the assailant. ” Id

. Accordin gly, in the absence of a stipulation as to iden tity, the Ru le 404 evidence “was properly offered by the state” to prove identity. Id

.
“Rule 404(b) does allow such evidence [of other crimes] when it i s relevant to a litigated issue , such as identity

. . . and its probative val ue is not outweighed by the danger of unfair prejudice.” State v. Hayes , 899 S.W.2 d 175, 183 (Tenn. Crim. App. 1995) (emphasis added). In cr iminal cases, defendants do not file f ormal written answ ers to the complaining ins trument. Consequently, one must look to the plea, filed notices , see e.g. , Tenn. R. Crim. P. 12.1, 12.2, argumentsof counsel, and evidence offered to determine what is “li

tigated.” In the presentcase, the defendant declar e d in his opening argument that the defense theorywas that he was not the pe rson who sold drugs to the undercover agent. When the stat

e began i

ts case in chie

f, identity was clear

ly the issue being “litigated.”

We cannot say the trial court abused its discretion in allow ing the second tape segment into evidence. See Dubose , 953 S.W.2d at 652. In the absence of
an identity stipulation,the trial court was w ell within its dis

cretion in essentially

ruling that the subjective evid ence of identity had not so clearly estab lished identity so as to make further proof redundant.

The fact that other identity pr oo f has been introduced should be considered by a trial court in determining whether th e probative value of rul e 404(b)8

evidence is outweighed by the danger of unfair prejudice. The court below properly weighed the proba tive value against prejudicial effect and rationally concluded that the second tape segment provided h ighly relevant evidence of the offender’s i dentity. Indeed, this is not a case w here the state is seeking to rel y upon a common scheme or plan carried out at different times, perhaps ondifferent days, and at different locations. Here, the distinctively at tired offender was identified through the second video at the same location only tw

o hours after theoffense was committed. It is dif ficult to think of a stronger case for demonstrating the eff icacy of identity evidence. Even though some subjectiv e evidence of identity had been admitted, the cogency of the video evidence supports the trial court’s ruling. Rule 404(b) offers the defendant no relief on this issue.

Neither does Rule of Criminal Procedure 16(a)(1)(C) afford any relief. The state furnished thesecond tape segment to the defendant on Thur sday before the trial began the

following Monday. The defendant argues that the state should have disclo sed the second video segment to him earlier in Rule 16(a)(1)(C) discover y. However, no rig ht to such discovery is triggered unles

s the defendant makes a proper request. See Tenn. R. Crim. P. 16(a)(1)(A), (C). The record in this
case reveals no such req uest. In a scheduling orde r, the trial court set a deadline forproviding discov

ery, but the record is

devoid of any request wh ich would h ave obligated the state to reveal the sec ond tape segment. At any rat e, the segment was revealed a few days prior to trial.

Furthermore, the defendant made no objections at tri al bas ed upon Rule 16. As a result, the R ule 16 ground for objection i s waived. Tenn R. App. P. 36(a); State v. Ma tthews , 805 S.W.2d 776, 781 (Te nn. Crim. App. 1988); State v. Ryan , 756 S.W.2d 284, 28 8 (Tenn. Crim. App. 1988).

For the above reasons, there is no error in the trial court’s allowing the second video segment into e vidence.9 Moreover, the def endant wa s shown no prejudice as a result of the denial of his motion to continue. This co urt will not distur b a tri al court’s denial of a continuance absent a showi ng of an abuse of discretion. State v. Gregory , 946 S.W.2d 829, 831 (Tenn. Crim. App. 1997). Moreover, any abuse of discretion must preju di ce the defendant. State v. Goodman , 643 S.W.2d 375, 378 (Tenn. Crim. App. 1982). The motion to continue w as made after the trial began. The defense had seen the second tape segment four day s earlier. There is no abus e of discretion in denying

the continuance.

II. T he defendant objected to the admission into evidence of th e defendant’s photograph which was taken during the defendant’s jail processingafter his arrest on the current charge. Both the undercov er agent and Officer Johnson testified that the defendant’ s appearance had changed since Aug ust 14, 1996. Theytestified he appeared in court with facial hair shaven and with a

short hair cut. Officer Johnson testified that the jail intake photograph depicted the appearance of the defendant that more closely resembled his appeara nce in the video tapes on August 14, 1996. This photograph had not p reviously been rev ealed to the defendant.

The defendant’s claim is once again founded up on Rule of Criminal Procedure 16(a)(1)(C). How ever, as noted above, the record contains no request fordiscovery of photogr aphs. Absent a request, the state had no duty to furnish the photograph. Moreover, the basis g iven for the objectionat trial was irr elevancy. A party may not object on one basis an d assert a different basis onappeal. Tenn. R. App. P. 36(a); State v. McPherson , 882 S.W.2d 365, 37 3 (Tenn. Crim. App. 1994). Moreover, the ground for this assigned error as set forth in the motion for new trial
was evide n ce Rule 404(b). Rule 16 w as not asserted in the new trial motion. Therefore, the issue is waived for this reason, as well. State v. King , 622 S.W.2d 77, 79 (Tenn. Crim. App. 1981); Tenn. R. App. P. 3(e ), 36(a).10 III. Next, we consider

the defendant’s claims of ineff ective assistance of counsel at tria l. Fir

st, the d efe nd ant alleges that defense counsel was hampered bya conflict of interests based upon Officer Scott Johnson’s wife being employed
as a secretary in the Public Defender’s Office. Although the defendant in his brief does not specifically allege this conflict of interest s as ineffective assistance of counsel, he does no t ar ticulate any other b asis for o btainin g any relief , and we construe the claim to be on e of inef fective assistance. See Stricklan d v. Washington , 466 U. S. 668, 692, 104 S. Ct. 2052, 2067 (1984); Michael Mc Neil v. Sta te , No. 02 C01-9705-CC-00168, slip op. at 3 (Tenn. Crim. App., Jack son, Jan. 7, 1998). Second, the defendant asserts that trial coun sel was ineffective in n ot objecting to the testimony of the TBI chemist who

admitted that she failed to test six of the seven rocks whic h were submitted to her for t esting by Officer Johnson.
When an appeal challenges the effective assist ance of counsel, the appellanthas the burden of establishing (1) def icient representation and ( 2) prejudice resulting from that d efi ciency. Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Deficient representation oc curs when counselprovides assistance that falls below the range of competence demanded of criminal attorneys. Bankston v. State , 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudi ce is the reas onabl e likelihood that, but for defic ient r epresentatio n, the outcom e of the proce edings would have been different. Overton v. State , 874 S.W.2d 6, 11 (Tenn. 1994). On review, there is a strong presumption of satisfactory representation. Barr v. State , 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

a. Conflict of Int

erests. The defendant claims his trial at torney who was employed

through the public defend er’s off ice was cau ght in a con flict of interest s wh ich resulted in his violation of va rious rules of ethical condu ct. See Tenn. R. Sup. Ct. 8, DR 4-10111

(preserving

confidences and secrets of client), DR 5-101 (restricti ng representation when interests of the lawy er may impair his or he r independent professional judgment), DR 5-107 (avoidance of influence from pers ons other than the client), DR 9-101 (avoiding the appearance of impropriety).

“A claim of ineffe ctive assistance of counsel based on an attorney’s conflict of interest is examined under a slightly different standard than a traditional ineffectiveness claim.” Howard Clifton Kirby v. State , No. 03C01-9303-CR-00074, slip op. at 3(Tenn. Crim. App., Knoxv ille, Sept. 28, 1994). Prej udice is presumed when “the defendant demonstrates that counsel ‘actively repr

esented conflicting interests’ and that ‘actual c onflict of inter est adve rs ely affected his lawyer’s performance.’” Strickland , 46 U.S. at 692, 104 S. Ct. at 2067 (quo ting Cuyler v. Sullivan , 446 U.S. 335, 350, 100 S. Ct. 1708, 1719 (1980)) . “Until a defendant has established that defense counsel ‘activel y represented conflicting interests, the defendant has not established the consti tutional predicate

for his claim of inef fective assistance.’” Kirby , slip op. at 4.

In the present case, there is no showingthat the trial attorney “actively represented conflicting interests” or that “a n actual conflict of interest adversely affected his lawyer’s performanc e.” Consequently, there i s no presumed prejudice.
Furthermore, the record fails to show actual prejudice. On appeal, this court may look to the preju dice pro ng of the Stricklandstandard first, and if the element of prejud ice is notpresent, the claim of ineffective assistance f ails. Strickland , 466, U.S . at 697, S. Ct. a t 2069. S uch is t he case h ere. Ine ffe c tive assistance of counsel based upon the assertion of a con flict of in t erests has not been shown.

b. Ex pert Witn ess Test imon y.

The defendant’s next claim of ineffectiv e assistance relates to tr ial counsel’s failure to object to the chemis t’s testimony about the w eight of the cocaine12

when the expert’s opinion sho uld have been disallow ed because “the underlying facts or d ata indicate a lack of trustworthiness.” See Tenn. R. Evid. 703. In overrulingthis claim on the defendant’s motio n for new trial, the trial court held that the quantity by w

eight of the contrabandwas an issue for the ju ry to re so lv e. We hold that State v. Copeland , 677 S.W.2d 471 (Tenn.Crim. App. 1984), supports the trial court’s decisi on.

In Copeland , the chemist received a quantity of approximately 3,000 pills. He first examined the pills “to ascertain they had the outward characteristics of Quaalude tablets.” After concluding that the pills all “appeared the same,” he randomly selected a total of thirty pills upon which he performed his chemical test and another nine pills upon which he per formed his instrumental test. Based upon his positive findings that the samples were Quaaludes, he opined that the combined weight of all the pills was 1,087 grams of methaq ualone. On appeal, Copeland complained that the testing procedure was

“grossly inadequate.” Id . at 474. This court held th e evidence that Copeland poss essed the necessary 200 g rams to support his conviction w as sufficient to find him guilty beyond a reasonable doubt. Id

. The court said, “The weight to be given to the testimony of the witness was a question for the jury.” Id

.

In the present case, the chemist tes tified that first she weighed all of the “rocks” of the white s olid material before she analy zed it. The combined weight
was 0.7 gram. Then she examined all ofthe rocks submitted to determine if it is a “fa irly consistent sample, all the rocks are about the same color, abou t the sa m e texture.”In the case of the rocks submitt ed by Officer Scott Joh nson, she found them all to be consis

tent. Th en she se lected o ne of the rocks for analysis. The other rocks were not an alyzed.

The defendant maintains therocks of cocaine are not uniforml y made and are distinguishable in this respect from Quaalude tablets. However, the record13

does not reflect a sufficient basis for distinguishi ng the present case from Copeland

. In Copeland , the court approved the basi c testing methodology that was employed in the present case, and we see no basis for departing fro m the rule in Copeland

.

Because Copeland authorizes the use of the exp ert evidence in the presentcase, the defendant has demonstrated no prejudice as a result of his trial counsel’s failure to object to the evidence. For this re ason, th is claim of ineffe ctive assistance of counsel must fail.

IV.

In addition t o pr esenting the expert w itness issue described i n the prec eding section as a matter of ineffective assistance of counsel, the defenda n t also has asserted that there is insufficient evidence of the quantity by weight of the cocaine to support his convic tio n of a Class B felony. Under Tennessee Code Annotated section 39-17-417(c), c ocaine in an amount of 0.5 g rams or more is the basis for a Clas s B felon y. An amount of less than 0.5 grams supports only a Class C felony charge.

For th e rea sons explained in the preceding section, the rule in Copeland establishes the sufficiency of the evidence in the present case.

Conclusion. The judgment of the trial court i s affirmed.

______________________________ JAMES CURW OOD WIT T, JR., Judge CONCUR:

__________________________ DAVID G. HAYES, Jud ge14

__________________________ JERRY L. SMITH, Jud ge