          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE         FILED
                           AUGUST 1997 SESSION
                                                  September 19, 1997

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9609-CC-00409
      Appellee,                     )
                                    )    FRANKLIN COUNTY
VS.                                 )
                                    )    Hon. Thomas W. Graham, Judge
FREDDIE SIMMONS,                    )
                                    )    (Casual Exchange, Schedule II)
      Appellant.                    )




FOR THE APPELLANT:                       FOR THE APPELLEE:

PHILIP A. CONDRA                         JOHN KNOX WALKUP
District Public Defender                 Attorney General and Reporter
12th Judicial District
204 Betsy Pack Drive                     JANIS L. TURNER
P. O. Box 220                            Assistant Attorney General
Jasper, TN 37347                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         JAMES MICHAEL TAYLOR
                                         District Attorney General

                                         WILLIAM COPELAND
                                         Assistant District Attorney General
                                         Franklin County Courthouse
                                         Winchester, TN 37398




OPINION FILED:



AFFIRMED AS MODIFIED




JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Freddie Simmons, was originally indicted for sale or delivery

of a Schedule II controlled substance, crack cocaine. He was convicted by a

Franklin County jury of casual exchange of a Schedule II substance, a Class A

misdemeanor. The jury assessed a $2,500 fine. At sentencing, defendant was

found to be a Range I Standard Offender and sentenced to six (6) months in the

Franklin County jail to be served “day for day,” to run consecutively to a prior escape

sentence. On appeal, he presents the following issues: (1) that he was denied a fair

trial by improper trial court comments in the presence of the jury, and comments

that showed bias toward the state outside the hearing of the jury; (2) that the trial

court erred in refusing to charge the jury on an absent material witness; and (3) that

the sentence imposed was improper. We affirm the conviction but modify the

sentence.



                                       FACTS



       Although sufficiency of the evidence is not at issue, a brief recitation of the

facts is appropriate. The state’s proof at trial showed that on July 27, 1992, State

Trooper Guinn Hall was working an undercover narcotics operation in Franklin

County. At approximately 6:40 p.m., while accompanied by a confidential informant

and being monitored by a surveillance team through the use of a body wire, Trooper

Hall approached defendant in a Franklin County park. He paid defendant $40 for

a bag containing some pieces of what appeared to be crack cocaine.

       Tildon Stubblefield, an investigator for the Tullahoma Police Department, did

not witness any of the transaction between Trooper Hall and defendant but testified

he monitored Trooper Hall’s voice as Hall attempted to make the crack cocaine buy.




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         The TBI lab technician, Randall Nelson, identified the “rock” in the plastic bag

as that which Trooper Hall had brought to the lab on July 28, 1992. The substance

proved to contain cocaine base.



                             TRIAL COURT COMMENTS



         Defendant contends that he was denied a fair trial due to improper trial court

comments both within and without the hearing of the jury. Defendant complains

that those comments made in the presence of the jury during voir dire and closing

argument removed the presumption of innocence and, combined with comments

made outside the hearing of the jury, show that the trial court was biased toward the

state.

                                            A.

         During voir dire while questioning a juror on the presumption of innocence,

Philip Condra, defense counsel, elicited the following remark by the juror:

                I don’t think any of us would be here, or he would be here if
         there weren’t some evidence of being guilty.

         Upon Mr. Condra’s motion to strike the juror for cause, the trial court

responded:

               Well, I’m not sure that what she’s saying isn’t correct. That
         obviously we wouldn’t be here if there wasn’t something. I mean
         obviously, we don’t just come to court.

         Upon Mr. Condra’s request, a bench conference followed wherein Mr.

Condra objected to both the comments of the juror and the court.              The court

responded by addressing the jury directly:

                All right, ladies and gentlemen, let me clear up something if
         there’s any confusion to this at all. My response to you that there,
         obviously, had to be something or we wouldn’t be having a trial,
         merely states a truism. You know you get here because a grand jury
         decides that there is a reason for a trial. It has not asked whether
         somebody is guilty or innocent, and it’s [sic] indictment, which is the
         issue that’s drawn for you, is not any proof whatsoever of guilt. It is
         only a finding that there should be a trial, that it wouldn’t be
         unwarranted to have a trial, and to that extent that’s the only basis
         that this Court has made any statements at all to you, because in
         response to the juror’s question that there must be some reason we’re
         here. Obviously, there’s some reason we’re here or we wouldn’t be
         here, but it’s not something that amounts to a presumption of guilt in

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       any fashion whatsoever. You’re going to decide that question. That’s
       why we have you in here. And you’re going to decide it by a very high
       standard, beyond a reasonable doubt. So I think that’s enough said
       on that issue.

       These comments concerning the grand jury process do not rise to the level

condemned in State v. Onidas, 635 S.W.2d 516 (Tenn. 1982). There was no

attempt to bias or prejudice the jury, nor is there any indication of bias in the context

of this exchange. Although trial courts should be very cautious in referring to grand

jury proceedings, these comments did not prejudice the defendant.

                                           B.

       The questioning of the juror continued, and Mr. Condra asked if she would

require the defendant to offer any proof. The Court intervened by saying, “[t]here

is no way for her to answer that question as you’ve asked it.” A bench conference

ensued, during which defense counsel noted the juror’s inability to answer and its

implication that the presumption of innocence had been unfairly removed. The trial

court then responded:

             If I was -- I’m going to require you to put on proof if the
       presumption has been removed by the proof presented by the state.
       You don’t have to, but I’m going to require . . .

       ....

              . . . If you want me to find the person not guilty, I -- that’s what
       defense proof is all about, to reduce something that’s been raised by
       the State.

       This remark was made outside the hearing of the jury and could not have

influenced the jury’s verdict. Ultimately, the juror was dismissed by peremptory

challenge. As to the question of bias, this Court interprets the trial court’s remarks

as illustrative only. The use of the first person “I” notwithstanding, it appears from

the transcript of the proceedings that the court was simply pointing out that if the

state proved its case of guilt beyond a reasonable doubt, then a conviction would

be appropriate absent some kind of countervailing evidence. We find that this

language does not show bias.




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                                          C.

       The final comment attacked by defendant occurred during closing argument.

As Mr. Condra embarked upon argument regarding the “missing witness charge,”

the state objected and the court responded:

              It [the charge] hasn’t been discussed. If you want to discuss
       that matter, we need to do that at some point outside the jury’s
       presence to consider whether you want to go forward with that
       argument. There is some question in the Court’s mind. I’d want to
       hear from both of you on that issue.

       Upon review of these and other comments of the trial court, we find that

defendant was not deprived of a fair trial by the trial court’s comments.



          THE ABSENT MATERIAL (“MISSING”) WITNESS CHARGE



       Next, the defendant challenges the trial court’s refusal to charge the jury on

an absent material witness. More specifically, he claims that the confidential

informant had knowledge of material facts from the night in question, but the state

did not call the informant as a witness in its case-in-chief. Therefore, he alleges that

the essential requirements for the missing witness instruction were established, and

the trial court erred in refusing the charge.

       Both defendant and the state rely on Delk v. State, 590 S.W.2d 435 (Tenn.

1979), and State v. Francis, 669 S.W.2d 85 (Tenn. 1984). This Court in State v.

Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim. App. 1988), stated:

             Our Supreme Court has held that a party may comment about
       an absent witness when the evidence shows that:

       (1) the witness had knowledge of material facts;
       (2) that a relationship exists between the witness and the party that
       would naturally incline the witness to favor the party; and
       (3) that the missing witness was available to the process of the court
       for trial.

       Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). The requirements
       set forth in Delk are to be strictly construed. State v. Francis, supra at
       89.

             In order to justify a missing witness instruction, the evidence
       must show that one of the parties had peculiarly available to him a
       witness with peculiar knowledge of the material facts at issue.




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(emphasis added); see also State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App.

1992).

         The proof at trial showed that Trooper Hall was the person who actually

purchased the cocaine from defendant. His testimony was undisputed. The

informant was only a witness to the transaction. There is no proof that the informant

would have had any “peculiar knowledge of the material facts at issue,” but rather

it appears his testimony would have been cumulative. The trial court concluded,

based on all the proof at trial, that the informant was known to both the state and

defendant. The evidence does not preponderate against this finding. Therefore,

we find that the informant did not have “peculiar knowledge” and was not “peculiarly

available” to the state.

         Furthermore, the identity of the defendant was clearly established at trial.

The defendant was allowed to argue to the jury the state’s failure to call the

informant as a witness, yet the jury obviously believed Trooper Hall. Given the facts

presented by the record before us, we find no prejudicial error in the refusal to give

the missing witness jury instruction.



                                    SENTENCING



         In his final assignment of error, the defendant complains that the trial court

erred in requiring the six-month sentence to be served “day for day” and

consecutively to his escape sentence.

                                           A.

         The trial court ordered that defendant serve 100% of this misdemeanor

sentence. The misdemeanor sentencing statute provides for a maximum of 75%

service. Tenn. Code Ann. §40-35-302(d). Our Supreme Court has held that 100%

service may be ordered in DUI cases only. State v. Palmer, 902 S.W.2d 391, 393

(Tenn. 1995); see also State v. Beech, 744 S.W.2d 585 (Tenn. Crim. App. 1987).




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Therefore, the trial court erred in ordering the defendant to serve more than 75%

of the misdemeanor sentence.



                                         B.

       Finally, defendant contends that the trial court erred in ordering this sentence

to be served consecutively to his prior sentence for felony escape. In sentencing

defendant the trial court noted defendant’s extensive prior record. It further appears

in our de novo review that consecutive sentencing reasonably relates to the severity

of the offenses and is necessary to protect the public from further criminal conduct

by the defendant. See State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Even

though the felony escape was actually committed after the instant offense, we find

no impropriety in consecutive sentencing since his parole on the felony escape had

already been revoked prior to the sentencing on the instant offense.



                                   CONCLUSION



       We find that defendant was afforded a fair trial and that consecutive

sentencing was justified; accordingly, we affirm the trial court judgment in these

respects. However, we find that the percentage of the sentence must be reformed

to 75% as set out by statute.




                                                  JOE G. RILEY, JUDGE

CONCUR:




J. CURWOOD WITT, JUDGE




JOE H. WALKER, III, SPECIAL JUDGE




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