         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 8, 2001

             STATE OF TENNESSEE v. JESSIE NELSON HODGES

                    Appeal from the Circuit Court for Lauderdale County
                         No. 6771    Jon Kerry Blackwood, Judge



                     No. W2000-00742-CCA-R3-CD - Filed June 27, 2001


After a jury trial, Defendant was convicted of theft of property less than $500. He was subsequently
sentenced to eleven (11) months and twenty-nine (29) days in the Lauderdale County jail. In this pro
se appeal, Defendant argues that the State failed to provide him with discoverable material or
information under Rule 16 of Tenn. R. Crim. P. After a review of the record, briefs of the parties
and applicable law, we conclude that the State complied with the mandates of Rule 16. Thus, we
affirm the judgment of the trial court.


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

L. TERRY LAFFERTY, SR. J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined.
DAVID H. WELLES, J., not participating.

Jessie Nelson Hodges, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and
Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The Lauderdale County grand jury accused Defendant with attempt to commit theft of
property over the value of $1,000, but less than $10,000. Ms. Julie Pillow, Assistant Public
Defender, was appointed to represent Defendant. On the Friday before trial, Defendant requested
that he represent himself at trial with Ms. Pillow as his “elbow counsel.” After lengthy questioning
by the trial court and against the trial court’s advice, Defendant insisted that he exercise his
constitutional right to represent himself. The trial court, after advising Defendant of the trial
procedure that would apply, permitted Defendant to represent himself and Ms. Pillow would sit at
counsel table as “elbow counsel.”
        At the completion of jury selection, Defendant objected to the introduction of the distributors
that had been brought into the courtroom for the trial by the victim. Defendant stated:

       Well, not so such relevant, Your Honor. What I’m objecting to is these items has
       been, as they say, passed from the Police Department back to the victim -- back to the
       victim. The record in preliminary hearing will show that.

       Now at this trial, they go back now, today, just today, to pick these items -- those so-
       called items they say, up. The defense has had no opportunity to examine or inspect
       any of this stuff at preliminary hearing before it left the Police Department’s control.

       I’m saying -- what I’m objecting to is I’m saying it should not be entered into
       evidence or shown in the value in it. It’s certain that the evidence is tainted.

       The Court:      Ms. Brewer?

       Ms. Brewer:     Your Honor, we have given Ms. Pillow, upon discovery, upon her
                       asking, pictures of these particular -- let me pass them up to the Court
                       -- these particular distributors.

              Your Honor, if there had been any indication that the defense wanted to
       review those, then we could have set up a convenient -- a mutual convenient time to
       have shown them to the Defendant.

               However, no request was made, and we have supplied -- we have had a
       preliminary hearing in this matter, as well as provided discovery pursuant to Rule 16,
       to the defense attorney in this particular matter.

               Your Honor, at this particular point, there’s nothing that has been trumped up
       as the Defendant wants to allege in this particular case. These were stored in
       evidence, and were returned to the victim, who has actually kept them until this
       particular time.

               This trial was first set last term, and he had those and brought them to that
       particular trial, but as that trial was bumped until today, they’ve been in the exact
       same format as when they were taken.

       The trial court overruled the Defendant’s objection.

        At trial, Randy Hutcherson, owner of Hutcherson Metals and a scrap dealer, testified on
March 22, 1999, that he received a phone call from the daughter of a tenant who lived in a house
adjacent to his scrap yard. Hutcherson went to the scrap yard and observed a van backed adjacent
to the house. Hutcherson used this scrap yard to store automobile cores and parts. Hutcherson saw


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Defendant loading distributors from a barrel into the rear of the van. At this point, Hutcherson
identified the distributors in the courtroom as being the ones taken from the van after the arrest.
Also, Hutcherson recognized the van as being one which transported an employee of his to work.
Hutcherson approached Defendant, and Defendant stated, “You've caught me!” Hutcherson had
Defendant sit by a wall until the police arrived. Hutcherson stated Defendant was loading two types
of distributors into the van, Ford 400 distributors and 351 Winsor distributors. Hutcherson identified
a photograph of the van seen at his scrap yard, and the photograph showed 204 Ford 400 distributors
and 29 351 Winsor distributors. He stated their value was $4,000. Hutcherson testified the van and
distributors were taken to the Halls City Police Department where these items remained for a week.
Hutcherson had an employee, Bubba Humphreys, count the distributors with the assistance of Joe
Hardy of the Halls City Police Department.

        At the end of this week, the distributors were returned to Hutcherson who stored them in a
building on his lot at 14293 Highway 210, until the first hearing. When the hearing got bumped, the
Lauderdale County Sheriff’s Department took custody of the distributors until two weeks before the
trial. The Sheriff’s Department was limited on storage space. Hutcherson stated he obtained the
distributors and secured them. He identified several photographs of the distributors which were
introduced as Exhibit 2, collectively.

       During cross-examination, Hutcherson acknowledged the barrel behind the van doors was
empty. He insisted that “I witnessed the man loading the remainder of the barrel into the van.”
Although Defendant did not run from the scene, Hutcherson stated, prior to the police’s arrival, the
Defendant got up and went to get in the passenger door of the van, when Hutcherson threw him to
the ground.

        Joe Purcell, Chief of Police, Halls, Tennessee, testified he received a theft call to
Hutcherson’s scrap yard. He observed a van backed up to a building with its back doors open. The
owner of the yard had caught Defendant loading material into the van. Chief Purcell arrested
Defendant and advised him of his rights. The van was secured and taken to Halls City Police
Department. Chief Purcell stated Defendant was covered in grease which appeared to have come
from the distributors. The van was released to Mary Midget, the Defendant’s sister, and her
boyfriend. After making a photograph of the distributors, they were returned to Hutcherson, since
the police department has no storage facilities. Chief Purcell acknowledged no fingerprints were
taken.

        On March 22, 1999, Bubba Humphreys, an employee for Hutcherson Metals, testified he
went to the police department and counted some distributors in a van. There were over 200
distributors in the van, but he could not determine what their value might be. He stated the
distributors were put into the back of a truck and taken to a storage building on Old Highway 51,
North. He agreed they were not secured.

         On behalf of the defense, Larry Wayne Thompson, an employee of Hutcherson Metals,
testified he was called by Chief Purcell about a van owned by him which was involved in a burglary.


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Chief Purcell advised Thompson that Defendant had been arrested for theft. Thompson stated he
picked the van up a week later after the distributors had been removed. Thompson acknowledged
that Mary Midget is his girlfriend and the Defendant’s sister. Also, Midget had used the van that
morning to take her children to school, but Thompson never gave the van to the Defendant.

         During jury deliberations, Defendant moved to have the trial court call his “elbow counsel”
Ms. Pillow to testify as to discovery. Ms. Pillow testified that the photographs were the only
evidence she received from the State that was intended for trial. She stated that at the preliminary
hearing, the victim stated the items had been returned to him but she was not advised they were kept
separate and apart or secured in any way, and was never advised that the State intended to present
physical items at trial. Ms. Pillow stated that the State complied with her discovery motion of July
14, 1999, by giving her photographs of the items. During cross-examination, Ms. Pillow stated she
never requested a review of the distributors during discovery, as she thought they had been used in
the victim's business, but did receive photographs of the distributors.

                                         LEGAL ANALYSIS

       Defendant asserts that the State failed to comply with Rule 16 of Tenn. R. Crim. P. in that
he was denied an opportunity to examine and inspect any physical evidence at trial. Defendant
requests any relief he is entitled. The State contends that the trial court did not abuse its discretion
in denying Defendant’s last minute request to suppress evidence.

                                      DISCOVERY - RULE 16

       In June of 1999, without a formal motion being filed, the trial court entered a pre-trial order
granting discovery pursuant to Rule 16, Tennessee Rules of Criminal Procedure. In pertinent part,
Rule 16 (1)(C), Tennessee Rules of Criminal Procedure, provides an opportunity for a defendant to
obtain or access documents and tangible objects that will be utilized by the State at trial.

       (C) Upon request of the defendant, the state shall permit the defendant to inspect and copy
       or photograph books, papers, documents, photographs, tangible objects, buildings or places,
       or copies or portions thereof, which are within the possession, custody or control of the state,
       and which are material to the preparation of the defendant’s defense or are intended for use
       by the state as evidence in chief at the trial, or were obtained from or belong to the defendant.

Also, the Rule provides:

        (d)(2) Failure to Comply with a Request. If at any time during the course of the proceedings
        it is brought to the attention of the court that a party has failed to comply with this rule, the
        court may order such party to permit the discovery or inspection, grant a continuance, or
        prohibit the party from introducing the evidence not disclosed, or it may enter such other
        order as it deems just under the circumstances. The court may specify the time, place, and



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        manner of making the discovery and inspection and may prescribe such terms or conditions
        as are just.

        The admissibility of evidence is generally within the broad discretion of the trial court; absent
an abuse of that discretion, the trial court’s decision will not be reversed. State v. Edison, 9 S.W.3d
75, 77 (Tenn. 1999). If there has been non-compliance, the trial court has great discretion in
fashioning a remedy. The sanction applied must fit the circumstances of the individual case. State
v. James, 688 S.W.2d 463, 466 (Tenn. Crim. App. 1984); State v. Cadle, 634 S.W.2d 623, 625
(Tenn. Crim. App. 1982). Evidence should not be excluded except when it is shown that a party is
actually prejudiced by the failure to comply with discovery and that the prejudice cannot be
otherwise eradicated. State v. James, 688 S.W.2d at 466. Likewise, the Rule applies to tangible
items “within the possession, custody or control of the state.” In this cause, the distributors were in
the possession of the owner for a substantial period of time, which includes two trial appearances.
The State’s failure to provide the items for examination or inspection does not violate the discovery
rule. State v. Hutchison, 898 S.W.2d 161, 167-68 (Tenn. 1994); State v. Harris, 30 S.W.3d 345, 349
(Tenn. Crim. App. 1999).

         The record reflects that the distributors in question and the van were taken from the crime
scene to the Halls Tennessee Police Department, where photographs were taken of each item. A
week later, the van was released to Defendant’s sister and the distributors were returned to the
owner. The record is not clear that the distributors were present for the preliminary hearing, but
Defendant was aware they had been returned to the owner. However, at the first trial the distributors
were present. A reasonable inference is that Defendant saw these distributors at the first trial.
Nevertheless, Defendant or at least his defense counsel had photographs of the distributors pursuant
to the discovery order. The record reflects the jury observed the distributors at the commencement
of the trial, but photographs of these distributors were admitted for the benefit of the jury. Defendant
was on notice, at least twice, that the owner had possession of the distributors at trial time.
Defendant failed to request an opportunity to personally inspect the distributors or seek a
continuance. Also, Defendant has failed to demonstrate any prejudice or how his inability to inspect
the distributors materially affected his trial. Although Defendant objected to the distributors being
entered into evidence, photographs of the same were admitted. Thus, physically the distributors were
not made a part of this record. We hold the trial court did not abuse its discretion in overruling
Defendant’s objection as to the distributors. There is no merit to the issue of a Rule 16 violation.

                                       CHAIN OF CUSTODY

        Defendant asserts that the distributors should not be entered into evidence or shown in value,
due to the fact that the evidence is tainted. The State counters that there was no error in the presence
of the distributors.

        It has been established that as a condition precedent to the introduction of tangible evidence,
a witness must be able to identify the evidence or establish an unbroken chain of custody. State v.
Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App. 1998). However, the failure to call all of the


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witnesses who handled the evidence does not necessarily preclude its admission into evidence. Id.
See State v. Johnson, 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984). While the State is not required
to establish facts which exclude every possibility of tampering, the circumstances established must
reasonably assure the identity of the evidence and its integrity. Id. This issue addresses itself to the
sound discretion of the trial court, and the court’s determination will not be disturbed in the absence
of a clearly mistaken exercise of such discretion. Id. See State v. Beech, 744 S.W.2d 585, 587
(Tenn. Crim. App. 1987).

        We agree with the State that the trial court did not abuse its sound discretion in permitting
testimony concerning the handling of the distributors in this cause. The trial transcript, including
Defendant’s adequate cross-examination, established that the distributors seen in Defendant’s van
were adequately accounted for up and until trial. The owner explained as to how he recovered the
distributors from the Halls City Police Department, their storage in one of his buildings, and then
their presentation at two trial appearances. Likewise, the record established that every person who
came into contact with the distributors from their seizure in Defendant’s van to trial testified as to
their knowledge; the victim, Chief Joe Purcell, Halls City Police Department, and Bubba
Humphreys, employee of the victim, with the exception of officer Joe Hardy. Defendant’s cross-
examination of the victim and Bubba Humphreys was quite clear as to the security of the distributors
or the lack thereof. Apparently, the jury was satisfied with the explanation surrounding the
presentation and preservation of the distributors, in that, in their collective wisdom, the offense
should be reduced to theft less than $500. There is no merit to this assignment of error.

        The trial court’s judgment is affirmed.



                                                        ___________________________________
                                                        L. TERRY LAFFERTY, SENIOR JUDGE




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