        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs September 28, 2010 at Knoxville

            STATE OF TENNESSEE v. DERRICK LEMON GOODE

                   Appeal from the Circuit Court for Bedford County
                          No. 16697    Robert Crigler, Judge




               No. M2009-02259-CCA-R3-CD - Filed November 17, 2010


A Bedford County Circuit Court jury convicted the defendant, Derrick Lemon Goode, of one
count of the sale of .5 grams or more of cocaine, see T.C.A. § 39-17-417(a)(3) (2006), and
one count of the delivery of .5 grams or more of cocaine, see id. § 39-17-417(a)(2). The trial
court merged the convictions and imposed a sentence of 12 years’ incarceration. In this
appeal, the defendant contends that the trial court erred by failing to excuse a juror for cause,
that the trial court erred by denying his pretrial request for material pursuant to Rule 26.2 of
the Tennessee Rules of Criminal Procedure, that the State withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963), that the trial court erred by failing to
give a limiting instruction regarding the jury’s use of the defendant’s prior convictions, and
that the evidence was insufficient to support his convictions. Discerning no error, we affirm
the judgment of the trial court.

              Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and C AMILLE R. M CM ULLEN, JJ., joined.

Emeterio R. “Terry” Hernando, Lewisburg, Tennessee, for the appellant, Derrick Lemon
Goode.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsey Paduch Stempel, Assistant
Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

              During a lengthy investigation into the illegal drug trade in Bedford County,
the 17th Judicial District Drug Task Force (“Task Force”) focused its investigation on a
“faction” of known and suspected drug dealers headed up by Bailey family matriarch Hazel
Bailey. The faction included Ms. Bailey; her son, Jonathan “John John” Bailey; her daughter
and the defendant’s wife, Karen Bailey Goode; and the defendant. During the investigation,
the Task Force utilized the services of a then-confidential informant, Jessica Berry. On April
24, 2008, at the behest of the Task Force, Ms. Berry telephoned a cellular telephone she
knew belonged to Hazel Bailey and inquired of Jonathan Bailey whether he had any cocaine
she could purchase. Mr. Bailey told her that he was in Murfreesboro but would provide her
with cocaine when he returned to Bedford County.

               Later that same day, Task Force Agent Shane George picked Ms. Berry up and
asked her to telephone Hazel Bailey again and request $100 worth of crack cocaine. Ms.
Berry complied, and the defendant answered the telephone and instructed Ms. Berry to go
to a residence on West End Circle in Shelbyville. Agent George searched Ms. Berry’s
person, fitted her with an audio transmitter and digital recording device, and provided her
with $100 in marked currency. He then drove her to a location near West End Circle and
dropped her off. He watched her walk toward the rendevous point but lost sight of her before
she got there.

              Task Force Agent and Assistant Director Tim Miller maintained visual
surveillance of Ms. Berry as she approached the residence. He observed the defendant exit
the house, take money from Ms. Berry, enter the house via the garage, and then return to Ms.
Berry and hand her a small object that Ms. Berry later described at trial as a small amount of
crack cocaine “knotted up” in a plastic bag. Ms. Berry left the residence and met Agent
George a short distance later. She gave the cocaine to Agent George, who had maintained
audio surveillance during the transaction, and Agent George sent the material to the
Tennessee Bureau of Investigation (“TBI”) for forensic testing.

             Testing by the TBI established that the material provided to Ms. Berry by the
defendant was .7 grams of cocaine base, or crack cocaine.

               The defendant denied participating in the drug transaction, claiming that Ms.
Berry had lied about receiving cocaine from him and that Agent Miller was mistaken in his
identification. The defendant maintained that he was at his residence in Bell Buckle at the
time of the transaction and, therefore, could not have sold cocaine to Ms. Berry in
Shelbyville.

             From this proof, the jury convicted the defendant as charged. Following a
sentencing hearing, the trial court merged the jury verdicts into a single judgment of
conviction and imposed a sentence of 12 years’ incarceration.

                                             -2-
              In this appeal as of right, the defendant alleges that the trial court erred by
refusing to excuse a juror for cause, by denying his pretrial request for Rule 26.2, or Jencks,
material, and by failing to provide an instruction limiting the jury’s consideration of the
defendant’s prior convictions. The defendant also contends that the State withheld
exculpatory evidence in violation of the standard pronounced in Brady v. Maryland, 373 U.S.
83 (1963), and that the evidence is insufficient to support his convictions. We will consider
each claim in turn.

                                     I. Juror Challenge

              The defendant claims that the trial court erred by failing to excuse for cause
potential juror Winstead (Juror Winstead) following Juror Winstead’s admission that he
believed “by a certain degree” that the defendant was guilty based upon the statements of the
lawyers during voir dire. The State contends that the trial court did not err by refusing to
excuse Juror Winstead for cause because, upon further questioning, the juror indicated that
he could be impartial. We agree with the State.

               “A court may discharge from service a grand or petit juror . . . for any other
reasonable or proper cause, to be judged by the court. That a state of mind exists on the
juror’s part that will prevent the juror from acting impartially shall constitute such cause.”
T.C.A. § 22-1-105 (1994). Accordingly, the trial court retains “wide discretion in ruling on
the qualifications of a juror,” State v. Howell, 868 S.W.2d 238, 248 (Tenn. 1993) (citing State
v. Kilburn, 782 S.W.2d 199, 203 (Tenn. Crim. App. 1989)), and the trial court’s ruling in this
regard will not be overturned absent a showing of an abuse of that discretion, Burns v. State,
591 S.W.2d 780, 782 (Tenn. Crim. App. 1979). “[I]rrespective of whether the trial judge
should have excluded the . . . challenged jurors for cause, any error in this regard is harmless
unless the jury who heard the case was not fair and impartial.” Howell, 868 S.W.2d at 248
(citing State v. Thompson, 768 S.W.2d 239, 246 (Tenn. 1989)). When the defendant
preserves the issue by exercising all of his peremptory challenges, “the failure to correctly
exclude a juror for cause is grounds for reversal only if . . . an incompetent juror is forced
upon him.” Howell, 868 S.W.2d at 248 (citing Ross v. Oklahoma, 487 U.S. 81, 89 (1988);
State v. Jones, 789 S.W.2d 545, 549 (Tenn. 1990)).

              The following exchange occurred during voir dire:

                             [Defense Counsel:] N ow , w ho am ong you
              believes that this defendant by a certain degree is already guilty?
                             If you think that this defendant is already guilty,
              by any degree, 10 percent, 20 percent, 30 percent can you please
              raise your right hand?

                                              -3-
                            So you think that this defendant is already guilty
              by a certain percentage?
                            [Juror Winstead]: Basically from what I have
              heard from y’all.

Shortly after this exchange, the trial court called Juror Winstead to the bench, and the
following exchange occurred:

                              The Court: There are no right or wrong answers
              up here. I think you were saying that based upon what the
              lawyers had said you had an idea he was guilty. There is a part
              of the jury instructions that what the lawyers say is not evidence.
                              [Juror Winstead]: All right.
                              The Court: Could you wait and hear the proof
              and then the jury instructions and decide based on that whether
              or not you feel like he is guilty or not?
                              [Juror Winstead]: Yeah.
                              The Court: Let me let the lawyers ask you some
              questions if they want to follow up.
                              [Prosecutor]: No questions.
                              The Court: Did you want to ask any questions
              to follow up?
                              [Defense Counsel]: No, Your Honor, as long as
              he says that he can stay and listen to the evidence.
                              [Juror Winstead]: All right.

Shortly thereafter, the defendant challenged Juror Winstead for cause. The trial court refused
to excuse Juror Winstead, finding that Juror Winstead’s response to questioning indicated
that he could decide the case based solely on the evidence presented. The defendant did not
use a peremptory challenge to remove Juror Winstead from the jury despite having
challenges remaining at the time he made the challenge for cause. He later exhausted his
peremptory challenges without striking Juror Winstead. The record clearly supports the
conclusion of the trial court. Despite initially stating that he was inclined to believe the
defendant was guilty, Juror Winstead stated that he understood that the statements of the
lawyers were not evidence and that he could decide the case solely on the evidence. Under
these circumstances, the trial court did not abuse its discretion by refusing to exclude Juror
Winstead for cause.




                                             -4-
                                         II. Jencks Material

              The defendant next asserts that the trial court erred by refusing his pretrial
request for the pretrial statements of the State’s witnesses pursuant to Rule 26.2 of the
Tennessee Rules of Criminal Procedure.1 The State contends that the defendant has waived
our consideration of this issue by failing to include citations to the record or to authorities in
his brief. In the alternative, the State asserts that the defendant is not entitled to relief
because Rule 26.2 provides for disclosure of witness statements only after a witness has
testified. We agree with the State on both points.

               The defendant argues that the trial court should have granted his motion for
Jencks material and required the State to provide him with the requested materials “not less
than forty eight (48) hours (or a reasonable period of time) before the witnesses testify at the
trial.” The defendant failed, however, to support this assertion with any argument detailing
how the trial court’s refusal prejudiced his case, much less any citation to appropriate
authorities or to the record. In consequence, he has waived our consideration of this issue.
See Tenn. R. App. P. 24(b); Tenn. Ct. Crim. App. R. 10(b).

                Moreover, our supreme court “in interpreting Rule 26.2 has held that even in
a capital case, the State is not required to produce witness statements until the conclusion of
the witness’s testimony on direct examination.” State v. Caughron, 855 S.W.2d 526, 535
(Tenn. 1993) (citing State v. Taylor, 771 S.W.2d 387, 391 (1989)). As such, there is simply
no support for the defendant’s assertion that he was entitled to the witnesses’s statements
prior to the trial.

                            III. Jury Instruction on Prior Convictions

               The defendant next contends that the trial court erred by failing to provide an
instruction to the jury that it could consider the defendant’s prior convictions only for
determining the defendant’s credibility. The State asserts that the defendant has waived
consideration of this issue by failing to support his claim with argument, citation to
authorities, or citation to the record; by failing to lodge a contemporaneous objection to the
jury instructions despite being given the opportunity to do so by the trial court; and by failing
to include the issue in his motion for new trial. Again, we agree with the State.




        1
         Rule 26.2 of the Tennessee Rules of Criminal Procedure had its genesis in the United States
Supreme Court holding in Jencks v. United States, 353 U.S. 657 (1957), wherein the court ruled that a
criminal defendant had the right to inspect prior statements or reports by government witnesses following
direct examination for use in cross-examination.
                                                  -5-
                The defendant’s failure to include this issue in his motion for new trial
precludes plenary appellate review of the claim. See Tenn. R. App. P. 3(e) (“[I]n all cases
tried by a jury, no issue presented for review shall be predicated upon error in . . . jury
instructions granted or refused . . . other ground upon which a new trial is sought, unless the
same was specifically stated in a motion for a new trial; otherwise such issues will be treated
as waived.”). Moreover, in view of the defendant’s failure to support his claim with
argument, citation to appropriate authorities, or citations to the record, we will not exercise
our discretion to review the issue for plain error. Tenn. R. App. P. 36(b) (stating that “an
appellate court may consider an error that has affected the substantial rights of a party at any
time, even though the error was not raised in the motion for a new trial” where consideration
of the error is “necessary to do substantial justice”); see also Tenn. Ct. Crim. App. R. 10(b)
(noting that this court will treat as waived those issues unsupported by argument, citation to
authorities, and citation to the record).

                                     IV. Brady Violation

               The defendant claims that he is entitled to a new trial because the State failed
to disclose prior to trial that Ms. Berry had been paid for her work as a confidential
informant. Arguing that the evidence was exculpatory, the defendant asserts that the failure
to disclose violated Brady v. Maryland, 373 U.S. 83 (1963). The State contends that there
was no Brady violation because the State did not suppress any evidence favorable to the
accused.

               In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court
held that “suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87. “Evidence
‘favorable to an accused’ includes evidence deemed to be exculpatory in nature and evidence
that could be used to impeach the [S]tate’s witnesses.” Johnson v. State, 38 S.W.3d 52,
55-56 (Tenn. 2001) (citing State v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995); State v.
Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998); United States v. Bagley, 473 U.S.
667, 676 (1985)).

              To prove a Brady violation, a defendant must demonstrate:

               (1) that he requested the information (unless the evidence is
               obviously exculpatory, in which case the [S]tate is bound to
               release the information whether requested or not),

               (2) that the State suppressed the information,

                                               -6-
               (3) that the information was favorable to the defendant, and

               (4) that the information was material.

Johnson, 38 S.W.3d at 56 (citing State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); Walker,
910 S.W.2d at 389). The evidence is deemed material if “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different.” Bagley, 473 U.S. at 682.

              The question is not whether the defendant would more likely
              than not have received a different verdict with the evidence, but
              whether in its absence he received a fair trial, understood as a
              trial resulting in a verdict worthy of confidence. A ‘reasonable
              probability’ of a different result is accordingly shown when the
              government’s evidentiary suppression ‘undermines confidence
              in the outcome of the trial.’

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678). In the case
of a delayed disclosure of exculpatory information, as opposed to a complete failure to
disclose, the inquiry is whether the delay prevented the defense from effectively preparing
for and presenting the defendant’s case. Caughron, 855 S.W.2d at 548 (Tenn. 1993); see
Bagley, 473 U.S. at 682 (failure to respond to Brady request may impair adversary process
because defense “might abandon lines of independent investigation, defenses, or trial
strategies that it otherwise would have pursued”).

               In this case, the defendant requested prior to trial that the State reveal the
identity of the confidential informant and provide him with a copy of her criminal record as
well as any agreements between the State and the informant regarding any criminal charges.
The trial court denied his motion. The identity of the informant, Ms. Berry, was revealed
sometime prior to the trial, and Ms. Berry appeared as a witness for the State. Both Ms.
Berry and Agent George testified that Ms. Berry was recruited to become an informant after
she was caught with drug paraphernalia. Both also candidly testified that Ms. Berry had been
paid in her role as an informant and that the Task Force had gone so far as to provide Ms.
Berry financial assistance to relocate to Florida after her identity was discovered. The record
does not support the defendant’s assertion that the State entered into these deals with Ms.
Berry in exchange for her testimony in his trial. Moreover, even if it did, the defendant has
failed to show that he was prejudiced by the delayed disclosure. The defendant thoroughly
cross-examined Ms. Berry regarding the remuneration from the Task Force, and her role as
a paid informant was plainly apparent from her testimony as well as Agent George’s. Under
these circumstances, the defendant is not entitled to relief on this issue.

                                              -7-
                               V. Sufficiency of the Evidence

              Finally, the defendant challenges the sufficiency of the convicting evidence,
claiming that the State failed to establish his identity as the perpetrator. The State contends
that the evidence overwhelmingly supports the defendant’s conviction. We agree with the
State.

                We review the defendant’s claim mindful that our standard of review is
whether, after considering the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings
of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. Winters, 137 S.W.3d at 654.

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

               The defendant first claims that the evidence is insufficient because “[t]he
identification testimony of deputy director Tim Miller and the confidential informant[]
Jessica Berry were not sufficiently corroborated.” We would remind the defendant that only
the testimony of accomplices requires independent corroboration. See, e.g., State v. Bane,
57 S.W.3d 411, 419 (Tenn. 2001).

              The defendant also asserts that certain testimony at trial “shows that the DTF
may have a video recording of the incident but they decided not to produce it in court
because the identity of the alleged seller may not have been the defendant.” This claim is
completely baseless and unsupported by any evidence from the record. Furthermore, the
absence of any video recording of the drug transaction was communicated to the jury, and
the jury, as was its prerogative, nevertheless chose to accredit the testimony of the State’s
witnesses.

              The defendant also contends that the evidence is insufficient because “[t]he
confidential informant was not a credible witness because she was biased.” As we have

                                              -8-
stated repeatedly, our standard of review leaves the determination of witness credibility
squarely within the purview of the jury as the trier of fact. See Cabbage, 571 S.W.2d 835.

                In this case, the evidence adduced at trial established that the defendant sold
.7 grams of crack cocaine to Ms. Berry on April 24, 2008. The defendant is not entitled to
relief on this issue.

                                         Conclusion

               Because we discern no error in the judgment of the trial court, the judgment
of the trial court is affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                              -9-
