### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 4, 2003 Session
STATE OF TENN ESSEE v. MAURIC E PRUITT
Appeal from the Circuit Court for Gibson County No. H-6859 Donald H. Allen, Judge

No. W2002-01905-CCA-R3-CD - Filed July 8, 2003

The defenda

nt, Maurice Pruitt, appeals from his conviction by a jury in the Gibson

County Circuit Courtfor the s ale of one-half gram or more of c ocaine, a Class B felony . The trial court sentenced him as a Range I

I, multiple offender to eig hteen yea rs in the Department of

Correction to be served
consecu tively to a ten-yea

r sentence fro m another county. The defendant contends that (1) the pretrial identification procedures were sug gestive and violated d ue pr ocess and (2 ) the t rial j udge erred by entering the jury

room. We affirm the judgment of conviction. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID H

. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined.

Harold R. Guinn, Humboldt, Te nnessee , for the

appella nt, Mauri ce Pruitt.

Paul G. Summers, Attorney Gene ral and Reporter; J. Ross Dyer, Assistant Attorney General; Garry G. Brown, District Attorney General; and Edward

L. Ha rdister, Assistant

District A

ttorney Genera l, for the appellee, State of Tennessee.
OPINION

This case arises from an u ndercover drug op eration

on June 27, 2 000, in whi ch Charlotte Lumpk in purchas ed crac

k cocain e from the

defenda nt. Sergean t Jacque Bass of the Paris Police Department

testified that in the

summer of

2000, he w orked asan under cover a gent ma king streetlevel cocaine purchases for the Drug Task Force. He was pa

rtnere d with Char

lotte L umpkin for each purchas e he made. His 1991 Ford Explorer had audio an d video recording equipmen

t, and Ms. Lumpk in wore a wireto recor

d any convers ations tha

t could not be picked up by

the equip ment in the car. On

the day of the sa le, he and Ms. L

umpkin re ceived $ 100 or $20 0 to buy drug s and began driving around Humboldt to make a purchase. He said he ta lked with T

homas Bo yki n who told h im that he would take them

to buy crack c ocaine. He said Mr . Boy kin got in to the car and dire cted him to drive to a specific house. Sergeant B ass gave Ms. Lumpkin $100, and she and Mr. Boy kin walked-2-

up to the hous e. Serg eant Ba ss s aid that he rem ained in the car and that a bush blocked his view
once Ms. Lumpkin and Mr. Boykin stepped onto the por ch. He said he saw the top of the screen door open. He said Ms. Lumpkin and Mr. Boy kin returned

a couple of minutes later and got in the
car. He asked Ms. Lumpkin if every thing went

okay, and she sa

id yes. He said he

gave five dollars to Mr. Boy

kin and took him to another street. Ms. Lumpkin then ga ve him the crack cocaine, which she had been holding in her hand. Two or three minutes later, Serge ant Bas s gave the crack coc aine to Agent Danny

Lewis at the Drug

Task Force office. Sergeant Bass testified

that after Mr . Boy

kin got ou t, Ms. L umpkin sai d the per son who sol d the drugs to her was a man whom they previously had see

n in a light blue car. He said that on another occasion, Ms. Lumpkin had spoken to a man in

a blue ca r who wou ld not sell d

rugs to t hem. He said the car was distin ctive, older but in extremely g ood condition, and trimmed in gold. Sergeant Bass sa id the blue

car wa s not pres ent at the June 27 buy . He said

that Ms. L

umpkin could notremember the man’s name but that after they returned to the office, she identified the defendant
as th e s el le r f

ro m a ph ot og ra ph ar ra y. On cross -examinat ion, Serg eant Ba ss testified that the y di d nottarget the defendant after the failed attempt to purchase drugs. He sa id he was filling out a report while Agent Lewis laid the photog raph array on a desk about twelve feet away. He said A gent L

ewis may have handed the photographs to Ms. L umpkin, who then laid them out. He also said he did not
see Agent L

ewis point

to any thing or prompt Ms. Lumpk

in when sh

e identif ie d the sell er’s photograph.

Charlotte Lumpk in testified that she

lived in Humboldt, Tennessee, from 1999 to 2001. She initially declined an offer to buy

drugs undercove

r for the D rug Task Force but later a pproached Agent Lew is and a ccepted the job. She was paid rega rdless of whether someone was arreste d or charged. Sergeant Bass was her pa rtner f or e ach attempted buy , and she wore a recording device when they

went out to

purchas e drugs. She said that during the afternoon of June 27, 2000, Thomas Boy kin stopped th

eir car . Serge ant Bas s t alked to Mr. Boykin, who g ot into the car and directed them to Brian Pearson’s house. She said that she had purchased drugs from Mr. Pearson before but that she did not deal with him that day. She said that Serg eant Bass gave her $100 a n d that she walkedup to the ho

use with Mr . Boy

kin. She sa

id that the defenda nt came to the door and that she told him she wanted to buy “a

bill,” which was one hundred dollars worth of c rack co caine. Sh

e said the defenda

nt pulled out a

bag from his pocket, said “hold on,” and went inside for a moment. She said that when he returned, he gave her five rocks of crack coc aine. She said she and Mr. B oyk in returned to the ca r. She s aid they drove a round the block, Sergeant Bass g ave Mr. Boy kin five dollars, and Mr. Boy

kin got out of the car. She said she handed the drug s to Sergeant Bass.

Ms. Lumpkin testified that at the time, she did not know the de fendant but had se en him aroundHumboldt. S he said sh e knew he

drove a s ky b lue car

with gold

trim and rims and a navy blue top. She sa

id this car was very

well known in Humboldt. She said that after they returne d to the Drug Task Force off

ice, she told Agent Le

wis that she did not know the seller’s name but that she knew what he drove. She said Agent Lew i s got six Polaroid pictures out of his desk, placed them on the des k in rows of three, and asked her if she c ould identify any of them as the seller. She said she immediately rec ognized the defendant as the person who sold her dr ugs. She said Brian-3-

Pearson’s photograph

was one of the pictures Agent L ewis showed her and the house they went to was Brian Pe arson’s

. On cross-examination, Ms. Lumpkin said that on an earlier oc casion, she had stopped th e defendant in his sky blue c ar and attempted to buy drugs but that the defendant had declinedbecause she was riding with the police. She admitted that she r ecognized three of the people in the photograph array

including the defenda

nt. She als o said Ag ent L ewis did not discus s the photographs with her before ta king them out. She admitted that she had been convicted of domestic assault and forgeries. Lieutenant Danny

Lewis of the Humboldt Police Department testified that he worked with the Drug Ta sk Forc e and wa s the cont rol age nt for Cha

rlotte L umpkin and

Serge ant Jacque

Bass. The officers searched Ms. L umpkin and placed

an audio rec ording device on her. After they received money for the pur

chase, Sergeant Bass and Ms. L umpkin left to find someone from whom they could buy

drugs. Agent L

ewis monit

ored the m from a nearby loc ation through audio equipment in their car. He said that

when Ms. Lumpkin returned to the Drug Task Force office, he placed six photographs on the des k in two row s of thre e. He sa id Ms. L ump kin immediat ely identified the defendant a s the seller. He said he chose pictures of people a ssociated with the defendant fo r th e photograph array

because they

could have possibly driven the c ar Ms. Lumpkin described. Agent Lewis testified that after Serg eant Bass returned from the transaction, Serge ant Bas s gavehim the drugs he had received from Ms. L umpkin. Ag ent Lewis took t he drugs to the Tennessee Burea

u of I nvesti gation C r ime Laboratory . The laboratory returned the evidence and prepared a report, which stated that the drug was a cocaine base, a

Schedule II controlled substance. On cross-e

xamination, he said he

didnot remember Ms. Lumpkin telling him before this transaction that she prev iousl y tried

to buy drugs f

rom the defendant. He said that she told him about the previous attempted transaction after completing the June 27 sale and that no report was madeon the previous attempted purchase.

Thomas Boykin testified that he ple d guilty to fac ilitation of the sale of cocaine with respect to the drug transaction on June 27, 2000. He said Ms. Lumpkin and Sergea nt Bass drove up and askedhim where

they could pur

chase dr ugs. He told them he did not sell drugs but got into the car to take the

m to someone who did. He said that he directed them to Brian Pearson’s house and tha t he and Ms. Lumpkin got out of the car and walked u p to the house. He said the defendant answere d the door. He said Ms. Lumpkin remained on the porch while he w ent into the house and bought drugs from

Brian Pearson. He said that he did not know if Ms. Lumpkin bought any drugs but that when he came out of the house, he had to flag Ms. L umpkin and Sergeant

Bass down because they had already

left. He said that Sergeant Bass g ave him five dollars and that he got out of the car. On cross-examination, he admitted that he was under the influenc e of drug s that day and not co mpletely
aware o f what was hap penin g. Based upon this testimony, the jury convicted the defendant of the sale of one- half gram or more of crack cocaine.-4- I. IDENTIFICATION P ROCEDURE S

The defendant contends that the trial court erred by admitting Ms. Lumpkin’s identification of him fro m a phot ograph array . He arg ues that th

e arra y w as unduly

sugge stive, mak

ing Ms. Lumpkin’s identification unreliable. He claims that one of the pic tures ha d Brian Pearson’ s name on it and that Agent Lewis c hose people Ms. Lumpkin knew for the photograph array

and arranged the photographs in such a

way that she would identify the def endant as the seller. The state contends that the defendant failed to raise this issue prior to trial and has waived the right to challenge it on appeal. Also, the state contends that the photograph array was not unduly sugge stive. We a

gree with the state.

The record

reflec ts that the

defenda nt did not make a p retrial motion to suppress the identification evidence. Rule 12(b)(3) of the Tennessee Rules of Crimina l Procedu re state s that a motion to suppress evidence must be raised pretrial. Failure to move pretrial to suppress an out-ofcourt identification waives the issue. State v. B urtis , 664 S.W.2d 305, 310 (Tenn. Crim. App. 1983); State v. McCray , 614 S.W.2d 9 0, 94 (Te nn. Crim. A

pp. 1981) ; see Tenn. R. Crim. P. 12(f).
Furthermore, the defe

ndant mad

e no objection to the i dentific ation pro cedure s at trial

. When the trial cou

rt admitte d the photo graphs used in the array into evidence the defendant made no objection. At the time they were admitted, one of the photographs had Brian Pearson’s name at the bottom. After Ms. Lumpkin t estified that Brian Pearson’s name was not on the photog raph when she identified him as the seller at the Drug Task F orce office, the

defendant

objected, arguing that the photograph was not an original. The trial court or dered Mr . Pearson ’s name to be covered before the photograph was passed to the ju ry. In his motion for a new trial and in his appellate brief, the defendant now alleges that the

out-of-court identification was so sugge stive thatit deprived him of due process . His objection at tri al challe nged the authen

ticity of the pho tograp

hs admitte d into evidence. The defendant may notobject

on one g round an d then ass ert a ne w or diff erent theory

to support the objection in the motion for new trial or on appeal. State v. Adkisson , 899 S.W.2d 626, 634-35 (Tenn. Crim. App. 1994).

II. THE TRIAL

JUDGE EN TERING THE JURY ROOM

The defendant also contends that the trial judge entered the

jury room at so me point. H

is sole support for this contenti on is a referenc e to the tr anscrip t of his moti on for a new trial , which he did not includ

e in the r ecord on appeal. He provi des no re ferenc e to the record he submitted. It is the duty of the appellant to prepare a recor d that conveys a f

air, accurate, and complete account of what transpiredin the trial court with respect to the issues that form the basis of the appe al . T.R.A.P. 24(b); State v. Miller , 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Generally , when the record fails to include relevant

procee dings or documents, we must presume the trial court’s ruling on the issue to be correct. State v. B ennett , 798 S.W.2d 783, 789-90 (Tenn. Crim. App. 1990).-5-

Based on the foregoing

and the record as a whole, we af firm the judgment of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE