        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  June 25, 2013 Session

                 STATE OF TENNESSEE v. MARK A. VESTAL

                  Appeal from the Criminal Court for Knox County
                 Nos. 91290, 91291 & 91292   Bob R. McGee, Judge




                 No. E2012-00913-CCA-R3-CD - Filed August 7, 2013


In three separate cases tried together, a Knox County jury convicted the Defendant, Mark A.
Vestal, of two counts of the sale of more than 0.5 grams of cocaine, one count of the sale of
less than 0.5 grams of cocaine, and two counts of the delivery of less than 0.5 grams of
cocaine. The trial court merged some of the convictions and entered judgments of conviction
for: two counts of the sale of more than 0.5 grams of cocaine and one count of the sale of less
than 0.5 grams of cocaine. The trial court sentenced the Defendant to a total effective
sentence of sixty years in the Tennessee Department of Correction (“TDOC”). On appeal,
the Defendant contends that the trial court erred when it: (1) excluded him from voir dire
without advising him that he had a constitutional right to be present for jury selection; and
(2) ordered that his sentences run consecutively. After a thorough review of the record and
relevant authorities, we conclude that the trial court erred when it failed to inform the
Defendant that he had a constitutional right to be present during jury selection. The
Defendant’s judgments of conviction are reversed, and the case is remanded for a new trial.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
                                  and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Gerald L. Gulley, Jr. (on appeal) and Mitchell Harper (at trial), Knoxville, Tennessee, for the
appellant, Mark A. Vestal.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber and John Bledsoe,
Assistant Attorneys General; Randall Nichols, District Attorney General; Jennifer Welch and
Philip Morton, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION
                                           I. Facts

       This case arises from the Defendant selling cocaine to a confidential informant on
several different occasions. For his actions, a Knox County grand jury returned three
presentments charging the Defendant with various offenses. In case number 91290, the
presentment charged the Defendant with one count of selling more than 0.5 grams of cocaine
and one count of delivering less than 0.5 grams of cocaine, both of which occurred on
February 11, 2009. In case number 91291, the presentment charged the Defendant with one
count of selling more than 0.5 grams of cocaine and one count of delivering more than 0.5
grams of cocaine on February 4, 2009. The presentment further alleged that the intended
recipient of the controlled substances was, at the time of the offense, under eighteen years
of age. In case number 91292, the presentment charged the Defendant with selling less than
0.5 grams of cocaine and delivering less than 0.5 grams of cocaine on January 26, 2009.
After a trial, the jury convicted the Defendant of the indicted offenses.

        On appeal, the Defendant does not contest the sufficiency of the evidence supporting
his convictions. The Defendant presents two arguments on appeal. The first is that the trial
court improperly excluded him from voir dire and the second is that the trial court erred when
it sentenced him. We will discuss herein the facts relevant only to the issues presented by
the Defendant on appeal.

                                        A. Voir Dire

       On the day of trial, but before the trial, the Defendant addressed the trial court about
the discovery provided to him by the State. He said that he had not received the discovery
in enough time to research the issues relevant for trial. The Defendant informed the trial
court that he had been trying to remove his trial counsel (“Counsel”) from his case for over
a year. The trial court informed the Defendant that the case was scheduled for trial, that
Counsel was a “fine lawyer,” and that the trial court was not going to reschedule the trial.
After this ruling, the Defendant continued to argue with the trial court. The trial court
repeatedly asked the Defendant to sit down and stop talking. The Defendant continued
talking, and the trial court informed him, “[I]f you continue speaking, you’ll have to go to
the dock, you won’t be able to be here. It would be much better for your case if you will be
quiet and observe what’s going on.” The Defendant responded, “I’d rather go to the dock,
sir.” The trial court informed the Defendant that it was his choice not to be present and that
Counsel would come back and explain to him how things were going. The Defendant said,
“Like I said . . . I fired [Counsel], so he no longer represents me.” The trial court informed
the Defendant that the Defendant had expressed his desire to go to the dock and that the trial
court would comply with that request.




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       The Defendant was then removed from the courtroom, and the trial court discussed
with the parties how they would handle his lack of presence during voir dire. The trial court
proposed that the jury venire be informed that the Defendant was in the court house, had been
offered the opportunity to be present and observe the trial, and had chosen not to be present.
The court officer informed the trial court that he may have to place a chain on the Defendant
because the Defendant had already been “combative” with officers.

       Voir dire was then conducted and a jury selected. The State asked permission to
dismiss Count 2 in presentment 91291, proceeding only on the charge of the sale of more
than 0.5 grams of cocaine in that case number. The trial court granted the State’s motion to
dismiss. The trial court then clarified for the record that the Defendant had made a motion
to absent himself from the courtroom and that the trial court had granted the Defendant’s
motion.

       The trial court stated:

               [L]et the record show that because of the [D]efendant’s disruptive
       behavior this morning, he started making pro se motions, he wanted to fire his
       lawyer, he wanted to – obviously wanted to postpone the case, a delaying
       tactic clearly. These cases are about two years old now, so there’s been plenty
       of time to do whatever needed to be done. And in the process of trying to get
       him to calm down and take his seat, he kept talking over the Court, refused to
       remain silent, and at that point indicated to the Court that he preferred to sit in
       the dock, that he didn’t want to be here. So the Court granted him that request.

               And because of that, because of the disruptive outbreak, the . . . court
       security has placed a shock bracelet around his ankle – somewhere around his
       leg – that will be used to subdue him should he become disruptive again.

                                           B. Trial

        The evidence at the Defendant’s trial, in the light most favorable to the State, proved
that a confidential informant approached officers about the Defendant who was selling drugs
in his neighborhood. The informant had known the Defendant for between four to six years,
and the two had interacted on “hundreds” of occasions. The informant and law enforcement
officers described three occasions when the informant purchased drugs from the Defendant.
The first was on June 26, 2009, when the informant purchased powder cocaine from the
Defendant. The informant arranged the purchase with the Defendant during a telephone call,
went to the Defendant’s house with an officer in the car, entered the house, and told the
Defendant he wanted to purchase “a 40,” which meant $40.00 worth of cocaine. The
Defendant, who kept the cocaine, baggies, and scales in a baby wipe container, weighed out

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the proper amount of cocaine. The informant gave the drugs to police and wrote a statement
about what had occurred. The confidential informant wore a recording device during the
drug transaction, and a tape recording of the transaction was played for the jury. The cocaine
purchased on this occasion was tested by the Tennessee Bureau of Investigations (“TBI”) and
determined to weigh 0.3 grams.

       On February 4, 2009, the confidential informant again purchased drugs from the
Defendant. He called the Defendant to ask if the Defendant had “an eight ball,” which was
one eighth of an ounce of cocaine and costs between $150 and $250. The Defendant told the
informant he wanted $200 for the eight ball, and the informant attempted to negotiate a lower
price. The police officer with whom the informant was working then picked him up, gave
him $200, and drove him to the Defendant’s house. The informant entered the house,
purchased the cocaine, exited the house, and gave the cocaine to the officer. The confidential
informant said he went back to the police department and created a written statement of what
had occurred. A tape recording of this transaction was also played for the jury. On the
recording, the informant is heard asking the Defendant if he can return later that day and buy
another eight ball for some buyers. The Defendant said yes. The cocaine purchased on this
occasion was tested by the TBI and determined to weigh 2.9 grams.

        On February 11, 2009, the informant again purchased cocaine from the Defendant.
The informant said this transaction went a little differently in that there was a woman there
when he arrived who was trading pills for cocaine. The informant said he had to wait until
her transaction was completed before he could purchase cocaine from the Defendant. After
purchasing cocaine from the Defendant, the confidential informant went back to the police
station with the officer and wrote a statement. A tape recording of this transaction was also
played for the jury. The cocaine purchased on this occasion was tested by the TBI and
determined to weigh 3.0 grams

        After the informant testified, the trial court excused the jury. The trial court then
brought the Defendant into the courtroom for an “identification procedure.” Out of the
presence of the jury, the trial court informed the Defendant that he was entitled to stay “as
long as [he] behave[d] himself.” The jury was returned to the courtroom, and the informant
identified the Defendant as the man who had sold him drugs.

         After the conclusion of the State’s proof, and out of the presence of the jury, the trial
court spoke with the Defendant and noted that he had been present during the trial with the
exception of jury selection and the direct examination of the informant. The trial court then
inquired about whether the Defendant wanted to testify, and the Defendant chose not to
testify.




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       The jury convicted the Defendant of two counts of the sale of more than 0.5 grams of
cocaine, one count of the sale of less than 0.5 grams of cocaine, and two counts of the
delivery of less than 0.5 grams of cocaine.

                                  B. Sentencing Hearing

      At the Defendant’s sentencing hearing, the State entered certified copies of the
Defendant’s prior convictions. The informant then testified that he referred to the Defendant
as “Powder Mark,” because the Defendant was one of the only dealers from whom he could
purchase powder cocaine. The informant said he began purchasing drugs from the Defendant
in 2006, and he regularly purchased cocaine from him between 2006 and 2009. The
informant said that he purchased cocaine for personal use and also for resale, purchasing
between $20 to $40 worth for personal use and as much as a seven grams of cocaine when
purchasing the drugs for resale. He regularly saw other people purchasing cocaine from the
Defendant.

       Based upon this evidence, the trial court sentenced the Defendant, finding:

       There’s only one real issue here and that’s whether to sentence the [D]efendant
       to consecutive sentences. . . . [T]here’s only one sentence in the career criminal
       category. And for the class B that’s 30 years to be served at 60 percent. And
       Class C is 15 years at 60 percent.

              The legal considerations the Court is supposed to apply when
       determining whether or not to sentence to consecutive sentencing I have
       reviewed, and . . . although you can always argue about these things, but
       clearly the first two considerations do apply. The [D]efendant is a professional
       criminal who’s knowingly devoted such – his life to criminal acts as a major
       source of his livelihood, that appears to be very clear.

             And the second one, the [D]efendant is an offender whose record of
       criminal activity is extensive. That, obviously, is clear.

              Other statutory considerations that usually the Court applies in
       determining where to sentence within the range don’t technically apply here,
       but consideration of some of them is – helps the Court to come to a
       determination of what to do here. That the [D]efendant does have a history of
       criminal convictions and criminal behavior in addition to those necessary to
       establish the appropriate range. I do believe that applies here.




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              And the offense involved more than one victim. The Court is very
      concerned about that. Crack cocaine is a poison, and I don’t know how much
      of our criminal caseload is attributable just to dealing in crack, people under
      the influence of it, committing crimes against each other, people – innocent
      men, women and children getting shot to death in their own homes by drive-by
      shooters who have tried to protect their territory for the sale of crack. And just
      the people whose lives are wasted by the drug. It’s a terrible scourge in our
      community.

             And considering the [D]efendant’s record, and considering the
      circumstances of this offense, that this was an ongoing operation for years with
      multiple customers, who that also means multiple victims, large amounts of the
      drug, the Court does find that consecutive sentencing is justified. And the
      Court will sentence in . . . presentment 91290, count one, the Court does now
      sentence the [D]efendant to – this is a Class B felony, the Court does now
      sentence the [D]efendant to . . . 30 years as a career offender. Count two will
      merge with count one.

             In presentment 91291, the [D]efendant having been found guilty of the
      sale of more than .5 grams of a controlled substance, the Court does now
      sentence the [D]efendant to 30 years as a career offender.

             And in presentment 91292, the [D]efendant having been found guilty
      by the jury of sale of less than .5 grams, a Class C felony, the Court does now
      sentence the [D]efendant to 15 years as . . . a career offender . . . . [C]ount two
      will merge into count one.

             ....

             . . . . As for the manner of service, the Court will order that the sentence
      – the 30 year sentence in presentment 91291 shall run consecutively to the
      sentence imposed in count one of the presentment 91290. And the Court will
      order that the sentence in count one of the presentment 91292 will run
      concurrently with the sentence imposed in 91290.

The Defendant’s total effective sentence was sixty years in TDOC. It is from these
judgments that the Defendant now appeals.

                                        II. Analysis




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       On appeal, the Defendant contends that the trial court erred when it removed him from
the courtroom during voir dire because the trial court failed to first advise him of his
constitutional right to be present for jury selection. The Defendant also contends that the trial
court erred when it ordered that his sentences run consecutively.

                                         A. Voir Dire

        The Defendant asserts that the trial court erred when it failed to advise him of his
constitutional right to be present and assist his counsel during jury selection, thereby
preventing him from knowingly, intelligently, and voluntarily waiving that right. The State
concedes that the trial court erred, and it agrees that this Court should reverse the judgment
of the trial court and remand the case for a new trial. We agree with the parties.

        Criminal defendants have the right to be present at all stages of the trial, including
sentencing. Tenn. R. Crim. P. 43(a); see also State v. Muse, 967 S.W.2d 764, 766-67 (Tenn.
1998); State v. Ballard, 21 S.W.3d 258, 262 (Tenn. Crim. App. 2000). This fundamental
constitutional right, however, may be waived. Rule 43(b); Muse, 967 S.W.2d at 767-68
(citing State v. Kirk, 699 S.W.2d 814 (Tenn. Crim. App. 1985)). The relinquishment of a
fundamental constitutional right may only be waived personally by the defendant and will
not be presumed from a silent record. Muse, 967 S.W.2dat 768 (citing House v. State, 911
S.W.2d 705, 714 n.20 (Tenn. 1995)). In order to waive the right to be present for voir dire,
a defendant must have knowledge of the right and, before voir dire is conducted, must
personally waive the right either in writing or on the record in open court. Id. Rule 43 also
provides that a defendant can waive his right to appear if, after present initially and filing a
motion, he “[v]oluntarily is absent after the trial has commenced.” The Rule also
contemplates that a defendant may be removed from the courtroom for disruptive behavior.

        In Muse, a case discussing whether or not a defendant may waive the right to be
present during jury voir dire, our Supreme Court acknowledged that there is a long-standing
presumption against the waiver of fundamental constitutional rights. 967 S.W.2d at 767.
The Court held that waiver would not be presumed from a silent record, and that in order for
a defendant to waive his or her right to be present during voir dire, the defendant must
personally waive the right in writing or on the record in open court. Id. at 768. In Muse, the
trial court rescheduled the jury selection at counsel’s request, but the defendant was
personally unaware of this. When jury selection began a day earlier than originally
scheduled, the defendant did not appear. The Supreme Court held that it was automatic
reversible error for a trial court to conduct jury selection without the presence of the
defendant. The Supreme Court stated:

       Having determined that the defendant’s statutory and constitutional rights were
       violated by conducting voir dire in his absence, the final issue is whether the

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       error committed in the trial court may be considered harmless. Certain
       constitutional rights are so basic to a fair trial that their infraction has never
       been treated as harmless. A defendant’s right to be present during jury
       selection is such a right. Here, the defendant observed not a single prospective
       juror, heard not a single response to the court’s questions concerning personal
       and general matters, and participated in not a single peremptory challenge.
       The defendant had no opportunity to give advice or make suggestions to his
       lawyer. The Court concludes that without an effective waiver the defendant’s
       absence from the entire voir dire proceeding resulted in such prejudice to the
       judicial process that automatic reversal is required.

967 S.W.2d at 768 (citations and internal quotations omitted). We note that this Court has
repeatedly held that automatic reversal is required when a defendant’s constitutional and
statutory rights to be present at his trial have been violated. See State v. Far, 51 S.W.3d 222,
227-28 (Tenn. Crim. App. 2001); Ballard, 21 S.W.3d at 262.

        In the case under submission, after appearing in court, the Defendant voluntarily
requested to absent himself from the courtroom. Arguably, the Defendant’s request
constitutes a motion to excuse himself from the courtroom as contemplated by Rule 43. The
trial court, however, did not ensure that the Defendant understood he had a constitutional
right to be present during jury selection and that he was waiving that right by absenting
himself from the courtroom. We are constrained, therefore, to reverse the judgments of
conviction and remand the case for a new trial.

                                        D. Sentencing

        The Defendant contends the trial court erred when it imposed consecutive sentences
based upon multiple drug buys, resulting in the severity of his sentence being based upon the
number of drug buys conducted by the officers rather than upon the severity of his crimes.
The State contends that the trial court properly ordered consecutive sentences based upon the
Defendant’s extensive criminal history and the fact that the Defendant was a professional
criminal. While the Defendant, if convicted, will be resentenced at the conclusion of his next
trial, we address this issue on its merits so as not to pretermit any issue properly before this
Court.

        Consecutive sentencing is a matter addressed to the sound discretion of the trial court.
State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984). A trial court may order
multiple sentences to run consecutively if it finds, by a preponderance of the evidence, that
at least one of the seven statutory factors exists. T.C.A. § 40-35-115(b)(1)-(7) (2010). In
addition to these criteria, consecutive sentencing is subject to the general sentencing principle
that the length of a sentence should be “justly deserved in relation to the seriousness of the

                                               -8-
offense” and “no greater than that deserved for the offense committed.” T.C.A. § 40-35-
102(1), -103(2) (2010); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

       In this case, the trial court found the following consecutive sentencing criteria
applicable:

       (1) The defendant is a professional criminal who has knowingly devoted the
       defendant’s life to criminal acts as a major source of livelihood;

       (2) The defendant is an offender whose record of criminal activity is extensive;

T.C.A. § 40-35-115(1) and (2).

       We conclude that the evidence supports the trial court’s imposition of consecutive
sentences based upon these findings. The Defendant is not entitled to relief on this issue.

                                     III. Conclusion

        Based on the above mentioned reasoning and authorities, we conclude that the
Defendant’s fundamental constitutional right to be present in the courtroom was violated.
Accordingly, we reverse the judgments and remand the case for a new trial. In the event of
further review, and in order to not pretermit any issues properly before us, we conclude that
the trial court did not err when it sentenced the Defendant to consecutive sentences.


                                                   ___________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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