         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 20, 2008

            STATE OF TENNESSEE v. BYRON LEBRON ROSHELL

                     Appeal from the Criminal Court for Davidson County
                       No. 2007-A-577       Cheryl Blackburn, Judge



                      No. M2007-02358-CCA-R3-CD - Filed April 2, 2009


JOSEPH M. TIPTON , P.J., dissenting.

        I respectfully dissent from the majority opinion’s conclusion that proof of prior drug sales
by the defendant was properly admitted. I conclude that this proof was prejudicial and essentially
irrelevant to the issues in the trial. I would reverse the judgment of conviction and grant a new trial.

        The majority opinion states that the State sought to prove that Pierre Martin had bought drugs
from the defendant on many previous occasions to refute the defendant’s “argument” that the
transaction was a casual exchange. The trial court, though, did not hold that the evidence of prior
sales was admissible on that issue. Rather, the trial court found that the evidence was admissible to
prove “a complete story of the crime and the relationship of the parties.” It also said that the
evidence was for the purpose of rebutting the defendant’s “allegations” that the informant was lying
and that Martin just “happened to call” the defendant; that is, it explained why Martin called the
defendant.

         The State had Martin acknowledge that he had bought drugs from the defendant before and
that, to his knowledge, the defendant was “in the business of selling drugs.” At that point, the trial
court instructed the jury not to consider the criminal behavior evidence as to the defendant’s
predisposition but as to whether it was a “complete story of the crime,” i.e., “whether the prior
behavior and the present alleged crime are logically related or connect[ed] or are necessary for a
complete account thereof or to show motive . . . or his intent.”

        The majority opinion concludes the prior sales were admissible because they refuted defense
counsel’s “allegations” that the defendant was only guilty of a casual exchange of drugs. It
concludes that the prior sales were admissible to explain why Martin called the defendant when the
informant wanted to buy cocaine. It also concludes that the sales explain the defendant’s motive and
intent in selling the drugs to the informant. I believe, however, that none of the reasons apply and
that the prejudice of the prior sales evidence outweighed any probative value they might have other
than propensity.
        As for refuting defense counsel’s “argument” or “allegations” that the transaction was only
a casual exchange, I find nothing in the record other than the request for a casual exchange
instruction to support this statement. The defense neither stated nor argued to the jury, nor
questioned witnesses, nor submitted evidence regarding a casual exchange. The defense essentially
assailed the credibility of the informant and Martin. In this regard, the defendant’s request for a
casual exchange instruction before the trial started did not constitute evidence that the State was
entitled to refute in its case-in-chief through showing prior drug sales. See State v. Roberts, 755
S.W.2d 833, 836 (Tenn. Crim. App. 1988) (holding that statements of counsel during the course of
a hearing are not evidence).

        As for the other crimes providing “contextual background,” the majority opinion essentially
ignores the defendant’s contention by noting that the state did not offer the evidence for that purpose.
This ignores, though, the fact that the trial court admitted the evidence for such a purpose and
instructed the jury accordingly. In my opinion, the test provided in State v. Gilliland, 22 S.W.3d
266, 272 (Tenn. 2000), is not met in this case. Proving the reason Martin called the defendant when
the informant wanted cocaine was wholly irrelevant to the issues. There simply was no need to
prove the sales for a “complete story” of the offense on trial.

        Proof of the defendant’s committing crimes similar to the one on trial is obviously
prejudicial. It tends to lead a jury to convict based upon the previous offenses. See State v. Roberts,
703 S.W.2d 146, 147 (Tenn. 1986) (quoting the dissent of Court of Criminal Appeals Judge Robert
K. Dwyer, who stated that the proof of a prior conviction for a similar crime allowed the jury “to
conclude that because he did it once, more than likely he did it again”); see State v. Luellen, 867
S.W.2d 736, 741 (Tenn. Crim. App. 1992) (holding that reversible error occurred in a possession of
cocaine with intent to sell case when the trial court admitted proof of several prior cocaine and
marijuana possessions by the defendant for the purported purpose of showing intent). I would
reverse the conviction and remand the case to the trial court for a new trial.




                                                        ____________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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