            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE

                          NOVEMBER 1999 SESSION
                                                          FILED
                                                          January 13, 2000
                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               *   No. 01C01-9903-CC-00110
                                      M1999-00003-CCA-R3-CD
      Appellee,                   *   RUTHERFORD COUNTY

VS.                               *   Hon. J. Steve Daniel, Judge

ROBERT L. MALLARD,                *   (Possession of Drug Paraphernalia)
      Appellant.                  *




For Appellant:                        For Appellee:

Brion J. Payne                        Paul G. Summers
Assistant Public Defender             Attorney General & Reporter
201 West Main Street, Suite 101
Murfreesboro, TN 37130                Marvin E. Clements
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      Paul A. Holcombe, III
                                      Assistant District Attorney
                                      303 Rutherford County Judicial Building
                                      Murfreesboro, TN 37130




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Robert Lee Mallard, was convicted of possession of

drug paraphernalia, a Class A misdemeanor. Tenn. Code Ann. § 39-17-425. The
trial court imposed a jail sentence of eleven months and twenty-nine days with a

seventy-five percent minimum service requirement.        Fines totaled $750.00.


              In this appeal of right, the defendant presents two issues for review:

              (I) whether the trial court erred by denying the
              defendant's motion to dismiss based on the state's loss
              of evidence;
              (II) whether the trial court erred by failing 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, Detective Robert Anthony Prestininzi and Officer

Chuck Barnes, both with the narcotics division of the Rutherford County Sheriff's

Office, were conducting surveillance of a suspected drug house on Bradyville Pike.
At approximately 9:15 P.M., the defendant drove a vehicle into the driveway, parked,

and walked inside the residence. A female passenger remained in the car. The

defendant stayed inside for a few minutes and then returned to his car. The
defendant did not appear to be carrying 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 Prestininzi 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 defendant made an abrupt turn

from Rutherford Boulevard onto Kensington Drive, Detective Prestininzi activated his
siren and lights. At trial, Detective Prestininzi explained that he stopped the car for


                                            2
speeding, but conceded that he was also motivated by his belief that the defendant

had just engaged in an illegal drug transaction.



              Detective Prestininzi approached the vehicle and spoke with the

defendant, who was still seated in the driver's seat. Officer Barnes went to the

passenger side of the vehicle and spoke with the female passenger. Detective
Prestininzi testified that he asked for and received the defendant's consent to

conduct a search of the vehicle. Officer Barnes testified that he heard the

defendant give consent for the search. The officers recovered what appeared to be
a crack pipe from the center console. Detective Prestininzi testified that the

defendant admitted that the pipe belonged to him, that he had an addiction to crack

cocaine, and that he had smoked crack cocaine the previous day. No illegal drugs
were found. Detective Prestininzi issued the defendant a misdemeanor citation for

possession of drug paraphernalia, placed the pipe in an evidence envelope, and

secured it in an evidence locker. Approximately one week before trial, Detective

Prestininzi discovered that the pipe was missing. During his testimony at trial,

Detective Prestininzi was unable to produce the pipe, but drew a picture of it.
Officer Barnes testified that the drawing was an accurate depiction of the pipe

recovered from the vehicle driven by the defendant.



              At trial, the defendant testified that the car he was driving on the day of

the offense did not belong to him and that he had come into possession of the

vehicle in Nashville that morning. He claimed that the owner of the vehicle, who
died approximately five months before the trial, had a drug problem. He also

contended that the crack pipe was not his, that he had never seen it before that day,

and that he never admitted to the officers that the pipe belonged to him. He testified

that he went to the house under surveillance in order to visit a friend.   The
defendant contended that he was not speeding and explained that the only 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, however, having told the officers that he had used


                                           3
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 evidence under

Tenn. Code Ann. § 39-17-424(2), which permits introduction of a defendant's prior

drug-related offenses in order to establish that a particular object falls within the
definition of drug paraphernalia. The defendant filed a motion in limine requesting

that the trial court hold a hearing outside the presence of the jury to determine

whether the probative value of evidence of his prior crimes outweighed the danger
of unfair prejudice, as prescribed by Tenn. R. Evid. 404(b). The defendant also filed

a motion to dismiss based on the missing crack pipe. Both motions were overruled

by the trial court.


                                             I

               Initially, the defendant contends that the trial court erred by failing to

dismiss the case based on the state's failure to preserve evidence. More

specifically, he claims that he was prejudiced by the loss of the pipe because he
was unable to conduct tests for the presence of cocaine residue. He points out that

the absence of residue would have been favorable to his defense. He also argues

that the characterization of an item as drug paraphernalia is an issue for the trier of
fact and that the absence of the pipe prevented him from pointing out its legitimate

uses. See Tenn. Code Ann. § 39-17-424(7). The state argues that the defendant

has failed to establish that he was prejudiced by the loss of the pipe.


               In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963), the

United States Supreme Court ruled that a prosecutor has a duty to furnish

exculpatory evidence to the defendant upon request. Exculpatory evidence may
pertain to the guilt or innocence of the accused and/or the punishment which may

be imposed if the accused is convicted of the crime. State v. Marshall, 845 S.W.2d

228 (Tenn. Crim. App. 1992).




                                             4
              Any "suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or punishment, irrespective 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 evidence. See United States v. Bagley, 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 exculpatory evidence that would raise a reasonable doubt about a
defendant's guilt. United States v. Agurs, 427 U.S. 97 (1976).



              In Arizona v. Youngblood, 488 U.S. 51 (1988), the United States
Supreme Court held that a criminal defendant must show bad faith on the part of the

state in order to establish a denial of due process for failure to preserve potentially

useful evidence. In State v. Ferguson, ___ S.W.2d ___ (Tenn. 1999), where the

police lost a videotape of the defendant's field sobriety tests, our supreme court

rejected the bad faith requirement articulated in Youngblood. In Ferguson, the
defendant argued that the videotape could have supported his claim that he was

suffering from a medical condition rather than exhibiting signs of intoxication. The

supreme court characterized the issue as follows:
              The analysis of both Brady and Agurs concerns the
              prosecution's suppression of "plainly exculpatory"
              evidence. This strikes a sharp contrast to the case under
              review wherein the existence of the destroyed 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 Constitution are broader than those enunciated in the

United States Constitution and that fundamental fairness, as an element of due

process, requires that the state's failure to preserve evidence which could be
favorable to the defendant be evaluated in the context of the entire record. The


                                            5
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 destroyed evidence,
              considered in light of the probative value and reliability of
              secondary or substitute evidence that remains available;
              and
              (4) the sufficiency of the other evidence against the
              defendant.
Ferguson, slip op. at 9-10. If a trial without the lost or destroyed evidence would 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 ultimately determined that the defendant had not been

deprived of his right to a fair trial based on the loss of the videotape.



              The Ferguson factors lead us to conclude that the defendant here was

not deprived of his right 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. While the exculpatory

nature of the pipe is tenuous, at best, it is our view that the state did have a duty to

preserve it. At a minimum, it was material to the preparation the defense.


              As to the second factor, there has been no allegation that the state's

loss of the evidence was motivated by bad faith. From all appearances, the failure
to preserve the evidence was the result of simple negligence.



              The third factor addresses the significance of the missing evidence.
The defendant argues that he was unable to test the pipe to ascertain whether or

not it contained cocaine residue. Presumably, he would contend that if the pipe

contained no cocaine residue, it was not actually a crack pipe. He has not,

however, presented any evidence of other legitimate uses for the pipe. In our view,
the loss of the pipe would not have prevented the defendant from submitting such

evidence. He had a full opportunity to testify and to cross examine either of the

arresting officers regarding other possible uses of the pipe. Furthermore, the

                                             6
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 favorable test

results as to the presence of cocaine or had the defendant presented credible
alternate explanations, the defense would have benefitted little.



              Finally, we must consider the sufficiency of the other convicting
evidence. The testimony of Detective Prestininzi and Officer Barnes established

that the defendant arrived at a suspected drug house. He entered the home and left

within a short time period. The officers found the pipe in the center console beside
the driver's seat. Detective Prestininzi testified that the defendant admitted

ownership of the crack pipe and conceded that he was addicted to the use of illegal

drugs. In our view, this was particularly persuasive testimony which favored 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 failure to preserve the

pipe.



                                           II
              Next, the defendant argues that his prior convictions should not have

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 prejudice.



              Tenn. Code Ann. § 39-17-402 defines drug paraphernalia as follows:
              "Drug paraphernalia" means all equipment, products and
              materials of any kind which are used, intended for use, or
              designed for use in planting, propagating, cultivating,
              growing, harvesting, manufacturing, compounding,
              converting, producing, processing, preparing, testing,
              analyzing, packaging, repackaging, storing, containing,
              concealing, injecting, ingesting, inhaling or otherwise
              introducing into the human body, a controlled substance
              as defined in subdivision (4). "Drug paraphernalia"
              includes, but is not limited to:
                                          * * *

              (C) Objects used, intended for use, or designed for use
              in ingesting, inhaling, or otherwise introducing marijuana,
              cocaine, hashish, or hashish oil into the human body,

                                           7
             such as:
             (i) Metal, acrylic, glass, stone or plastic 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 paraphernalia, 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 logically relevant factors consider the
             following:
             (2) Prior convictions, if any, of the owner or of anyone in
             control of the object for violation 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 submitted

under Tenn. Code Ann. § 39-17-424(2) must satisfy the test for admissibility

articulated in Tenn. R. Evid. 404(b), which provides the following:


             Evidence of other crimes, wrongs, or acts is not
             admissible to prove the character of a person in order to
             show action in conformity with the character trait. It may,
             however be admissible for other purposes. The
             conditions which must be satisfied before allowing such
             evidence are:
             (1) The court upon request must hold a hearing outside
             the jury's presence;
             (2) The court must determine that a material issue exists
             other than conduct conforming with a character trait and
             must upon request state on the record the material issue,
             the ruling, and the reasons for admitting the evidence;
             and
             (3) The court must exclude the evidence if its probative
             value is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). The state argues that the mandatory language contained in

Tenn. Code Ann. § 39-17-424(2) which provides that a court "shall" consider

relevant prior convictions exempts such evidence from the mandates of Rule 404(b).


              The state provided pretrial notification to the defense of its intent to

introduce into evidence the defendant's two prior convictions for possession of drug
paraphernalia and one prior conviction for simple possession of crack cocaine


                                            8
pursuant to Tenn. Code Ann. § 39-17-424(2). In response, the defendant filed a

motion in limine asking for the procedural protections afforded by Rule 404(b). The

transcript from the pretrial motions includes the following exchange:
              The State: I think really the only other motion in this
              case, the State filed the same two motions that it had
              filed in Mr. Mallard's case that we argued back 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 understand the court's position
              is that the statute is pretty clear as far as being
              admissible.

              The Court: Yes sir. You want to preserve your same
              objection.

              Defense Counsel: I would like to reserve that objection
              for appeal, your Honor.

              The Court: Sure . . . .



              During the trial, the state called Elfreida Young, Rutherford County's

Chief Deputy Circuit Court Clerk, to introduce the prior judgments of conviction. 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 evidence here and these convictions
              as to determine knowledge of the drug paraphernalia, the
              subject matter of the particular charge. That's one of the
              factors that can be considered under that statutory
              requirement. And that's the reason it's being allowed . . .
              .



              The statute at issue, Tenn. Code Ann. § 39-17-424, was adopted by
the Tennessee legislature in 1989. No prior cases address the statute. Rule 404(b)

of the Tennessee Rules of Evidence became effective in Tennessee on January 1,

1990. Therefore, the effective date of the statute pre-dates the Rules of Evidence.

The Advisory Committee Comments indicate that Rule 404(b) was drafted to follow
our supreme court's pronouncements in State v. Parton, 694 S.W.2d 299 (Tenn.

1985). In consequence, the basis 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 rules of statutory interpretation in resolving any conflict between


                                           9
the statute and Rule 404(b).



              The legislature has the authority to establish rules governing the
admissibility of evidence. 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 legislative intent, with all rules of
construction being aides to that end." Browder v. Morris, 975 S.W.2d 308, 311

(Tenn. 1998). If the intent can be determined from the plain language of the statute,

we must conclude our inquiry there. Storey v. Bradford Furniture Co., 910 S.W.2d
857 (Tenn. 1995). If the language is ambiguous and does not yield a clear

interpretation, we may consult the legislative history for guidance. See Carr. v. Ford,

833 S.W.2d 68 (Tenn. 1992). There is no written legislative history regarding Tenn.
Code Ann. § 39-17-424. In our view, however, the plain language of the statute

requires consideration of the prior convictions on the issue of whether the pipe fell

within the statutory definition of drug paraphernalia. "Courts are restricted to the

natural and ordinary meaning of the language used by the legislature in the statute,

unless an ambiguity requires resort elsewhere to ascertain legislative intent." Id.

Where the statute is clear in expressing the legislature's intent, there is no need to

resort to auxiliary rules of construction. Courts need only enforce the statute as

written. The language of the statute at issue is clear and unambiguous in its
mandate that "the court or other authority making such a determination shall"

consider the prior convictions. 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 convictions under Tenn. Code Ann. § 39-17-424 without weighing

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 Tennessee Rules of Evidence qualifies as a general rule

on the admissibility of prior offenses, Tenn. Code Ann. § 39-17-424 specifically
authorizes the admission of prior drug offenses when the issue concerns drug


                                             10
paraphernalia.



                 Accordingly, the judgment of conviction is affirmed.


                                     __________________________________
                                     Gary R. Wade, Presiding Judge

CONCUR:



_______________________________
John H. Peay, Judge


________________________________
Norma McGee Ogle, Judge




                                      11
