            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                           AUGUST SESSION, 1999 September 24, 1999

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
STATE OF TENNESSEE,           *
                              *     No. 01C01-9711-CC-00518
      Appellee,               *
                              *     LINCOLN COUNTY
vs.                           *
                              *     Hon. Charles Lee, Judge
MICHAEL BROWN,                *
                              *     (Sale of Cocaine)
      Appellant.              *



For the Appellant:                  For the Appellee:

Michael O. Brown, Pro Se            Paul G. Summers
CCA/SCCC                            Attorney General and Reporter
Post Office Box 279
Clifton, TN 38425                   Clinton J. Morgan
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493


                                    W. Michael McCown
                                    District Attorney General

                                    Weakley Edward Barnard
                                    Asst. District Attorney General
                                    P. O. Box 878
                                    Fayetteville, TN 37334




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                              OPINION



        The appellant, Michael Brown, appeals pro se,1 his conviction for one count

of sale of cocaine, a class B felony. The Lincoln County Circuit Court subsequently

sentenced the appellant, as a range II offender, to twenty years in the Tennessee

Department of Correction. In this appeal as of right, the appellant raises the

following issues:

        I. Whether the prosecution’s failure to disclose the identity of all
        persons present at the time of the alleged offense was error;

        II. Whether the prosecution violated Tenn. Code Ann. §§ 39-16-107 &
        39-16-507 (1991) by bribery and coercion of a State’s witness;

        III. Whether the prosecution’s failure to produce Jencks material and
        the trial court’s failure to impose contemporaneous sanctions upon the
        State was error;

        IV. Whether the appellant was denied a fair trial by the prosecutor’s
        remarks during closing argument vouching for a witness’s identification
        of the appellant;

        V. Whether the trial court erred by failing to instruct the jury on a
        lesser included offense; and

        VI. Whether the evidence was sufficient as a matter of law to support
        the conviction.



        After review of the record, we affirm the judgment of the trial court.




                                            Background



        In January 1995, TBI Agent Patrick Howell was assigned to assist the 17th

Judicial District Drug Task Force in the surveillance and purchase of drugs in

Lincoln County. Also assigned to the Drug Task Force were Agents Robert Brisco


        1
          The record indicates that ”the appellant was originally represented by counsel, however,
on February 18, 1998, [this] Court granted the appellant’s motion to represent him self on appeal.”
See State v. Michael O. Brown, No. 01C01-9711-C C-00518 (Te nn. Crim. App. at Nash ville, Apr.
3, 1998) ; State v. Michael O. Brown, No. 01C01-9711-CC-00518 (Tenn. Crim. App. at Nashville,
Feb. 18, 1998).

                                                 2
and Ray Brisco who were employed as deputies with the Lincoln County Sheriff’s

Department. Agents Robert Brisco and Ray Brisco contacted Francine Strong, who

was acting as a confidential informant for the Drug Task Force, to arrange a large

purchase of cocaine for an undercover agent. On Wednesday, January 25, 1995,

Francine Strong succeeded in setting up a “drug buy” at Sandra Oden’s residence at

the Oak View Apartments in Fayetteville. Special Agent Howell, outfitted with an

audio transmitter and a tape recorder, met Strong and Oden at a local convenience

store and rode to the Oak View Apartments in Strong’s vehicle. Strong advised

Agent Howell that she and Oden had arranged for the appellant to meet Howell that

evening for the purpose of selling an eight-ball (c ounce) of crack cocaine. Strong

added that the appellant wanted $175 for the drugs. Upon arriving at the apartment

complex, Agent Howell was directed to Strong’s apartment; fifteen minutes later, he

was instructed to go down the stairway to Oden’s apartment. Several other people

who were unknown to Agent Howell were also present in the apartment. Agent Roy

Brisco and Agent Robert Brisco set up surveillance in the parking lot outside the

apartment. Shortly thereafter, Strong advised Agent Howell that the appellant had

pulled in the parking lot. At that time, an unidentified black female, identified at trial

as Beverly Brown, left the apartment. Several minutes later, the female returned to

the apartment accompanied by the appellant. Agent Robert Brisco, who was

outside at the time, later confirmed that the appellant arrived in a Cadillac and that a

black female approached the vehicle.



       Once in the apartment, the appellant gave the cocaine to Strong. Agent

Howell instructed Strong “to let [him] examine it.” “[He] looked at it. Then [he] asked

[the appellant] what the price was [ . . . “if it was $150.”] [”[The appellant] told

[Howell] that he was incorrect] . . . the price would be $175.” Agent Howell then

asked the appellant if he had five dollars change and handed the appellant $180

cash. The appellant gave Agent Howell five one dollar bills in return. Within three




                                           3
minutes, the appellant left the apartment. The entire transaction lasted about six to

eight minutes.



       At trial, the testimony and evidence presented by the State confirmed that the

substance sold to Agent Howell for $175 was 3.1 grams of “cocaine base;” enough

cocaine for 25 to 50 uses. The jury was also informed that Francine Strong was a

confidential informant for the Lincoln County Drug Task Force. She testified that

she agreed to “work” for the task force in exchange for a suspended sentence

arising from drug-related charges against her. Strong stated that Beverly Brown,

who was present at the time of the undercover transaction and was the female who

accompanied the appellant into the apartment, did not know anything of the

arranged sale. She added that Ms. Brown was a relative of the appellant. In

addition to Agents Howell’s and Brisco’s identifications of the appellant, Strong also

made an in-court identification of the appellant. Sandra Oden, also a confidential

informant, could not make a positive identification of the appellant as the person

engaged in the drug transaction with Agent Howell on January 25. She explained

that “[she] was really on drugs, and [she] just really didn’t care about faces.”



       Based upon this information, the jury found the appellant guilty of class B

sale of cocaine.




                                       I. Waiver



       The appellant’s issues I through V are presented within the context of plain

error, Tenn. R. Crim. P. 52(b), and, thus, are raised for the first time on appeal.

The State argues that these issues are waived as they were not included in the

appellant’s motion for new trial. See Tenn. R. App. P. 36(a); 3(e). The general rule

is that this court does not consider issues that are not raised in the trial court. See


                                          4
State v. Hoyt, 928 S.W.2d 935, 946 (Tenn. Crim. App. 1995). However, this court

may “only recognize errors pursuant to rule 52(b) that ‘seriously affect the fairness,

integrity or public reputation of judicial proceedings” when necessary to prevent a

miscarriage of justice.” State v. Adkisson, 899 S.W.2d 626, 639-40 (Tenn.Crim.App.

1994) (footnotes omitted). “This rule should not be invoked to recognize an error

that is not plain or does not affect a substantial right of the accused.” Id. In

determining whether an error constitutes plain error, the reviewing court must

consider the following factors:

(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is ‘necessary to do substantial justice.

Id. at 641-642 (footnotes omitted). Thus, our review will be limited to address

alleged errors encompassed within these guidelines. Tenn. R. Crim. P. 52(b).



                    A. Failure to Disclose Identity of Beverly Brown

        In his first issue, the appellant contends that, despite his specific request in

both his Rule 16 motion for discovery and Rule 7 motion for bill of particulars, the

State failed to reveal the identity of Beverly Brown as a person present at the time of

the alleged offense.2 He contends that the State’s failure to do so prejudiced his

defense in that Beverly Brown would have provided information to exonerate the

appellant.3




        2
         Neither Tenn. R. Crim . P. 16 (discovery) nor Tenn. R. Crim. P. 7(c)(bill of particulars),
encom pass th e discov ery of poten tial witnesse s. See Tenn. R. Crim. P. 16; Advisory
Comm ission Comments, Tenn. R. Crim. P. 7(bill of particulars not meant to be used for purposes
of broad discovery). Notwithstanding, the State is required pursuant to Brady v. Maryland, infra, to
divulge information that is favorable to the accused.

        3
          Indeed, at the motion for new trial, the appellant submitted, in an offer of proof, the
affidavit of Ms. Brown stating that the appellant was not the person who sold drugs to Agent
Howell. We note that Ms. Brown’s statement exonerating the appellant, a relative of Ms. Brown,
was not made until January 14, 1997, two years after the offense occurred.

                                                 5
       There is no general constitutional right to discovery in a criminal case, see

Pennsylvania v. Richie, 480 U.S. 39, 107 S.Ct. 989 (1987); Weatherford v. Bursey,

429 U.S. 545, 97 S.Ct. 837 (1977), and the State is not obliged to make an

investigation or to gather evidence for the defendant. See State v. Reynolds, 671

S.W.2d 854, 856 (Tenn. Crim. App. 1984). A distinction exists between a statutory

right to discovery and the constitutional right to the production of exculpatory

evidence. State v. Brownell, 696 S.W.2d 362, 363 (Tenn. Crim. App. 1985);

Hamilton v. State, 555 S.W.2d 724, 730 (Tenn. Crim. App. 1977). Unless the

omission deprived the defendant of a fair trial by failing to provide favorable

evidence, there is no constitutional violation requiring that the verdict be set aside,

and there is no breach of the prosecutor’s constitutional duty to disclose. See

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555 (1995). The State had three

witnesses who could positively identify the appellant as the seller. See Roberts v.

State, 489 S.W.2d 263, 265-66 (Tenn. Crim. App. 1972) (the law does not require

that the State call any particular witness in a criminal prosecution or that it use all of

the witnesses it might have available). Prior to and during the appellant’s trial, there

is no indication in the record that the identity of Ms. Brown, who was not called as a

witness at trial, was potentially favorable information for the defense. See generally

United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375 (1985); Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194 (1963). Thus, we decline to determine this issue under

plain error.



                       B. Bribery of Witness Francine Strong

       The appellant next asserts that “the State violated [Tenn. Code Ann.] §§ 39-

16-107 [and 39-16-507] by offering, conferring or agreeing to confer anything of

value to the witness [Francine Strong] in exchange for the giving of trial testimony.”

The only support for his position is an affidavit of Francine Strong, signed two years

after the date of the offense, recanting her testimony at trial. This affidavit was

entered in an offer of proof at the appellant’s motion for new trial.


                                           6
       At the appellant’s trial, the jury was aware of Strong’s criminal history and her

cooperation with the Drug Task Force in exchange for a suspended sentence.

Provided with this knowledge, it was the jury’s function as the sole judges of the

credibility to weigh any bias or motive for her testimony and ascertain the truth of the

informant's account in light of all the circumstances. Her subsequent affidavit does

not offer anything more than what was before the jury at the time of the trial

regarding the motivation for Strong’s testimony. Thus, the issue is one of Strong’s

credibility and does not affect a substantial right of the appellant. This issue is

waived.



                       C. Failure to Provide Jencks Material

       The appellant next contends that the State’s failure to provide him with

Jencks material and the trial court’s inaction thereupon denied him a fair trial. We

reject review of this issue as plain error. Because the original Jencks opinion was

founded on the United States Supreme Court's supervisory powers, and not on

constitutional grounds, a denial of that right does not, per se, result in constitutional

error. See Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007 (1957); Palermo

v. United States, 360 U.S. 343, 345, 362, 79 S.Ct. 1217, 1221, 1229-30 (1959).

Thus, this issue is also waived.



                D. Prosecutorial Misconduct in Closing Statement

       The appellant asserts that the prosecutor, during closing argument,

improperly vouched for a State’s witness’s identification of the appellant, effectively,

denying him due process rights under Article 1, Section 8 and Article 1, Section 16

of the Tennessee Constitution. He complains that this reference inserted the

prosecutor’s personal knowledge into the trial, thus undermining confidence in the

verdict. The comment complained of provides:

       And I know that Brisco had seen him any number of times, and he
       identified him as having seen him that night and had seen him the day
       before. This is not, ladies and gentlemen, a case of mistaken identity.


                                          7
       As argued by the State, the appellant has waived review of this issue by

failing to raise an objection during closing argument. Tenn. R. App. P. 36(a).

Notwithstanding waiver of this issue, we acknowledge that our supreme court has

recognized that closing argument is a valuable privilege for both the State and the

defense and that counsel is afforded wide latitude in presenting final argument to

the jury. See State v. Cribbs, 967 S.W.2d 773, 783 (Tenn.), cert. denied, -- U.S. --,

119 S.Ct. 343 (1998); State v. Cone, 665 S.W.2d 87, 94 (Tenn.), cert. denied, 467

U.S. 1210, 104 S.Ct. 2400 (1984). In order for a defendant to be granted a new trial

on the basis of improper closing argument, he must show that the argument was so

inflammatory or the conduct so improper that it affected the verdict to his detriment.

See Harrington v. State, 385 S.W.2d 758, 759 (1965). See, e.g., Judge v. State,

539 S.W.2d 340, 344 (Tenn. Crim. App. 1976) (factors considered in assessing

whether comments affected verdict).



       From our review of the record, it is clear that the prosecutor was not inserting

any personal accreditation to the witness’s identification. The comment by the

prosecutor merely reiterated the witness’s testimony that he had seen the appellant

the night of the offense and the day before, i.e., a number of times. Thus, we

conclude that the prosecutor’s comment does not serve as a basis for a new trial.

This issue is without merit.



                      E. Failure to Instruct on Lesser Offense

              Next, the appellant contends that the trial court’s failure to instruct the

jury on the lesser offense of casual exchange denied him his constitutional right to

trial by jury. See State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994);

State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App. 1981). A trial court must

fully instruct the jury on the general principles of law relevant to the issues raised by

the evidence, including instructions on lesser offenses included in the indictment.


                                          8
See Tenn. Code Ann. § 40-18-110(a)(1990). This obligation includes giving

instructions on lesser offenses included in the indictment, without any request on the

part of the defendant. See Tenn. Code Ann. § 40-18-110(a). However, there is no

constitutional right to a jury instruction on a lesser offense in every case. See

Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995 (1973). Thus,

where there is no proof in the record to support the instruction, no jury instruction on

the lesser offense need be submitted. State v. Elder, 982 S.W.2d 871, 877 (Tenn.

Crim. App. 1998) (citing State v. Trusty, 919 S.W.2d 305, 311 (Tenn. 1991)).



       It may be inferred from the amount of a controlled substance possessed by

an offender, along with other relevant facts surrounding the arrest, that the

controlled substance was possessed for the purpose of selling. Tenn. Code Ann. §

39-17-419 (1991). It may likewise be inferred from circumstances indicating an

exchange of a small amount of a controlled substance that the controlled substance

exchanged was not possessed for the purpose of selling. Id.       Indeed, a casual

exchange is one that occurs without design; it contemplates a spontaneous passing

of a small amount of drugs, for instance, at a party. See Loveday v. State, 547

S.W.2d 822 (Tenn. Crim. App. 1976). In the present case, Agent Howell purchased

$175 worth of cocaine as part of an undercover drug transaction set up by a

confidential informant. The evidence is overwhelming that the transaction in the

present case was a designed sale. There is no evidence of a casual exchange.

Under similar circumstances, this court has previously refused to require that the

jury be instructed as to simple possession as a lesser included offense. See, e.g.,

State v. George Rose, No. 02C01-9710-CR-00405 (Tenn. Crim. App. at Jackson,

Jul. 2, 1998), perm. to appeal denied, (Tenn. Jan. 11, 1999); State v. David

Humphrey, No. 01C01-9404-CR-00134 (Tenn. Crim. App. at Nashville, Feb. 8,

1995); State v. William Howard Horton, No. 01C01-9312-CR-00435 (Tenn. Crim.

App. at Nashville, Oct. 6, 1994), perm. to appeal denied, (Tenn. 1995); State v. Jay

F. Salts III, No. 01C01-9306-CC-00181 (Tenn. Crim. App. at Nashville, Mar. 29,


                                         9
1994). The trial court was not required to instruct the jury on the lesser offense.

This issue is without merit.




                                 II. Sufficiency of the Evidence



        In his final issue, the appellant challenges the sufficiency of the evidence

supporting his conviction. Specifically, he contends that (1) Agent Howell’s

testimony regarding the “general practice” and procedures of the TBI were not

followed because Howell failed to make several purchases from the target in order

to properly identify the supplier; (2) the State failed to show that Agent Howell was

issued $180 dollars to make the alleged purchase; (3) the State failed to prove that

the appellant received any money from Agent Howell; (4) the State failed to show

that any exchange of money for drugs occurred between the appellant and any of

the prosecution witnesses; (5) confidential informant Francine Strong gave false

testimony at trial; and (6) conflicts existed in the testimony of State’s witnesses. 4



        Once the accused is convicted of an offense, the presumption of innocence

once attached to him is replaced with one of guilt, so that on appeal he has the

burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). On appeal, this court neither reweighs nor

reevaluates the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Furthermore, the State is entitled to the strongest legitimate view of the evidence

and all reasonable or legitimate inferences which may be drawn therefrom. State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). If the evidence, viewed under these

standards, is sufficient for any rational trier of fact to have found the essential

elements of the offenses beyond a reasonable doubt, then this court must affirm the


        4
         The a ppellant als o raises evidentiary iss ues within his sufficie ncy argu men t, e.g.,
evidence more prejudicial than probative. We note that no objection was entered at trial and
accord ingly the alleged error is wa ived. See Tenn. R. App. P. 36(a).

                                                  10
conviction. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979);

State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).



       The jury found the appellant guilty of sale of cocaine over one-half gram in

violation of Tenn. Code Ann. § 39-17-417(a)(3), (c)(1) (1995 Supp.). In order to

convict under this statute, the State must prove that the accused knowingly sold a

controlled substance, cocaine, in an amount equal to or greater than one-half gram.

Id. The substance and quantity of the sale are not disputed. Moreover, Agents

Howell and Brisco and confidential informant Francine Strong positively identified

the appellant as being the person who sold an “eight ball” of cocaine to Agent

Howell on January 25, 1995. Questions involving the credibility of eyewitness

testimony identifying the accused as the perpetrator of the indicted offense are for

the jury's determination and not this court's. State v. Strickland, 885 S.W.2d 85, 87

(Tenn. Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn.

Crim. App. 1982)); see also State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim.

App. 1981). Accordingly, the appellant has failed to show that the evidence at trial is

insufficient for any rational trier of fact to find the essential elements of this offense

beyond a reasonable doubt. Tenn. R. App. P. 13(e). This issue is without merit.




                                       Conclusion



       Based upon our review of the record and the applicable law, we affirm the

judgment of the trial court.




                                          11
                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




___________________________________
JOE G. RILEY, Judge



___________________________________
L. T. LAFFERTY, Senior Judge




                               12
