            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                         DECEMBER 1998 SESSION
                                                         March 9, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )   C.C.A. NO. 01C01-9802-CR-00073
            Appellee,             )
                                  )    SUMNER COUNTY
VS.                               )
                                  )    HON. JANE WHEATCRAFT,
CHARLES A. CRENSHAW, a.k.a        )    JUDGE
“BOO”                             )
                                  )
            Appellant.            )    (Ineffective Assistance of Counsel)



FOR THE APPELLANT:                    FOR THE APPELLEE:


BRENT HORST                           JOHN KNOX WALKUP
42 Rutledge St.                       Attorney General & Reporter
Nashville, TN 37210
      (On Appeal)                     KIM R. HELPER
                                      Asst. Attorney General
ROGER SINDLE                          Cordell Hull Bldg., 2nd Fl.
103 Bluegrass Commons Blvd.           425 Fifth Ave., North
Hendersonville, TN 37075              Nashville, TN 37243-0493
      (At Trial)
                                      LAWRENCE RAY WHITLEY
                                      District Attorney General

                                      DEE GAY
                                      Asst. District Attorney General
                                      113 West Main St.
                                      Gallatin, TN 37066




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              On April 1, 1997, the defendant was found guilty by a jury of facilitation of

the sale of cocaine and of possession of marijuana. The defendant was sentenced as

a Range II multiple offender to a term of eight years for the facilitation of the sale of

cocaine and a term of eleven months, twenty-nine days for the possession of marijuana.

These sentences were to run consecutively and were to be served in the Tennessee

Department of Correction. The defendant’s subsequent motion for a new trial was denied

by the trial court. The defendant now appeals and argues that he was denied the

effective assistance of counsel. After a review of the record and applicable law, we find

the defendant’s contention to be without merit and thus affirm the judgment of the court

below.



              The defendant’s convictions stem from his involvement with a sale of crack

cocaine on February 2, 1996, to an informant working with the Sumner County Drug Task

Force. The evidence at trial indicated that the defendant, while in Michael Everett’s car,

gave a quantity of crack cocaine to Eric Oldham. After dropping the defendant off, Mr.

Everett and Mr. Oldham drove around the neighborhood.          Mr. Oldham then sold the

cocaine he received from the defendant to the confidential informant. After the sale, the

informant returned to the drug task force location where he had been wired and searched

before the sale. After the informant briefed the officers and gave them the purchased

cocaine, the officers began to search for Mr. Everett’s vehicle. Mr. Everett testified that

after the sale to the informant, he and Mr. Oldham went to a friend’s nearby residence.

The defendant arrived shortly thereafter, at which point the defendant and Mr. Oldham

went outside the residence for a few minutes. Mr. Everett, Mr. Oldham, and the

defendant then left the residence and were spotted by police a few minutes later. After



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the police initiated a traffic stop of Mr. Everett’s car, the three men were searched. Upon

searching the defendant, the police found six hundred fifty dollars ($650) in cash. After

examining the cash, the police found that two of the twenty dollar ($20) bills were the bills

used by the informant to purchase the cocaine from Mr. Oldham.1 The police also found

1.3 grams of marijuana in the car.



               The defendant now contends that his trial counsel was ineffective for

several reasons. In reviewing the petitioner’s Sixth Amendment claim of ineffective

assistance of counsel, this Court must determine whether the advice given or services

rendered by the attorney were within the range of competence demanded of attorneys

in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a

claim of ineffective counsel, a petitioner “must show that counsel’s representation fell

below an objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687-88, 692, 694 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).



               The defendant claims that his trial counsel was ineffective for his failure to

object to, and his own solicitation of, evidence of other bad acts and crimes committed

by the defendant. Specifically, the defendant points to Mr. Everett’s testimony, which

referred to the defendant selling cocaine to various other people on the day Mr. Oldham

sold the cocaine to the informant. The defendant claims that there was no connection

between these earlier sales to other people and the sale to the confidential informant.

The defendant contends that his trial counsel should have objected to the testimony.




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          The police had photocopied the money given to the informant to buy the crack cocaine. As
such, the police were able to identify the bills according to their serial number.

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              Tennessee Rule of Evidence 404(b) governs the admissibility of prior

misconduct. It states,

              Evidence of other crimes, wrongs, or acts is not admissible to prove
              the character of a person in order to show action in conformity with
              the character trait. It may, however, be admissible for other purposes.
              The conditions which must be satisfied before allowing such evidence
              are:
                    (1) The court upon request must hold a hearing outside the jury’s
                    presence;
                    (2) The court must determine that a material issue exists other
                    than conduct conforming with a character trait and must upon
                    request state on the record the material issue, the ruling, and
                    the reasons for admitting the evidence; and
                    (3) The court must exclude the evidence if its probative value
                    is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). However, there are exceptions to this rule. “[E]vidence of other

crimes may be admissible to show (1) motive; (2) intent; (3) guilty knowledge; (4) identity

of the defendant; (5) absence of mistake or accident; or (6) a common scheme or plan

for commission of two or more crimes so related to each other that proof of one tends to

establish the other.” State v. Hoyt, 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995) (citing

Collard v. State, 526 S.W.2d 112, 114 (Tenn. 1975)); see also State v. Bordis, 905

S.W.2d 214, 227 (Tenn. Crim. App. 1995).



              In the case at bar, the evidence of other bad acts referred to the defendant

selling drugs to other people shortly before the sale to the informant. As this evidence

tends to show that the defendant, who furnished the cocaine that Mr. Oldham ultimately

sold to the informant, was involved in a common scheme to sell drugs, it was admissible

as an exception to Tennessee Rule of Evidence 404(b). As such, the defendant’s trial

counsel did not err in failing to object to the introduction of the evidence. This contention

is without merit.



              The defendant next contends that he received the ineffective assistance of



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counsel when his trial counsel elicited testimony from Mr. Everett that the defendant had,

on several prior occasions, given Mr. Everett drugs. The actual testimony is as follows:

              Q. Let me go over your testimony for you. Your testimony was [the
              defendant] gave [you] [drugs] because [you] gave him a ride. So you
              transported [the defendant] that day, right?
              A. Yeah, I did transport him that day, yes, sir.
              Q. And in the past, have people like [the defendant], maybe [the
              defendant] himself or friends or acquaintances, have they given you
              some dope?
              A. Yes, sir.
              Q. There is nothing unusual about that, is there?
              A. No, sir.
              Q. I really have a problem with this, too, and maybe you can help me.
              Your testimony is, I’m riding along in the car with these people, or I’m in
              their acquaintance, and I’m not selling any dope; but [the defendant]
              gives to Mr. Oldham the dope and says, “Go sell this, and bring me the
              money back.” Now, did you ever give anybody dope and say, “Go sell
              this and bring the money back”?
              A. No, sir.
              Q. You never have done that?
              A. No, sir.
              Q. Why? Why wouldn’t you do that?
              A. No, sir.
              Q. Why not?
              A. I was too strung out, and I always smoked it.
              Q. So that would be kind of unusual, wouldn’t it, for somebody that is a
              user?
              A. It would be unusual for somebody that was using, for the dope dealer
              to give the user the dope and thinking that he’s going to go out and sell
              it. More than likely, he’s going to smoke it. . . .
              Q. Mr. Oldham, is he a user?
              A. I don’t know . . . .
              Q. Wait a minute. How long have you known Mr. Oldham?
              A. I’ve known Mr. Oldham a long time.
              Q. You’re telling the ladies and gentlemen you never saw him use
              drugs. Think about that.
              A. I have seen him use drugs.
              Q. So now he is a user?
              A. Yeah, he is somewhat of a user . . . .
              Q. Mr. Everett, in all honesty, can you look at the . . . jury and you tell
              them this? You don’t think it was a little bit unusual about the fact of
              your testimony . . . . [The defendant] is going to give to a user some
              drugs and say, you know, go out and sell this, you know, and bring the
              money back? You don’t see anything unusual?
              A. It is uncommon.


In light of this series of questions, it seems clear that the defendant’s trial counsel was

trying to raise doubt as to whether the defendant had given drugs to Mr. Oldham for


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resale. This Court should not second-guess trial counsel’s tactical and strategic choices

unless those choices were uninformed because of inadequate preparation, Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to have been

ineffective merely because a different procedure or strategy might have produced a

different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980). As it

seems that trial counsel’s strategy in this line of questioning was to impeach the credibility

of the witness, we will not second-guess his tactics because another tactic might have

produced a different result. In addition, even assuming that this line of questioning was

due to inadequate preparation or fell below an objective standard of reasonableness, in

light of the evidence against him, the defendant has failed to show that but for this error

the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88,

692, 694. As such, this contention is also without merit.



              The defendant next contends that he received the ineffective assistance of

counsel because his trial counsel did not object to Officer Bunch’s testimony that

indicated he knew the defendant “on sight” for most of his police career, that the

defendant cussed and yelled at the time of his arrest, and that the defendant had always

had that kind of attitude. However, the defendant’s trial counsel specifically stated during

cross-examination of Officer Bunch that there were some questions asked during direct

examination to which he did not object because he wanted to go over them during cross-

examination. The defendant’s trial counsel then questioned the officer regarding the

defendant’s demeanor at the time of his arrest. Trial counsel made the point, and Officer

Bunch agreed, that it is not unusual for people to become upset when they are arrested

for a crime they did not commit. Once again, this is a matter of trial strategy. As this

choice of strategy was not due to inadequate preparation and it did not fall below an

objective standard of reasonableness, the defendant has failed to show that he received



                                              6
the ineffective assistance of counsel. The defendant has also failed to show that any

comments by Officer Bunch that he knew the defendant prior to this arrest had any

prejudicial effect or that the result of the proceeding would have been different had his

trial counsel objected to this testimony. This contention is also without merit.



              The defendant finally contends that he did not receive the effective

assistance of counsel because his trial counsel did not object to the prosecutor’s

comments during closing argument that the defendant is a “big kahuna,” that the

defendant had been selling drugs all day that day, and that providing marijuana “is the

regular for [the defendant].” The defendant argues that these comments rise to the level

of prosecutorial misconduct and his trial counsel’s failure to object to these comments

constitutes ineffective assistance of counsel.



              When claiming prosecutorial misconduct, the defendant is required to show

that the argument was so inflammatory or the conduct so improper that it affected the

verdict to his detriment. Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). In

reviewing an allegation of improper conduct, this Court should consider several factors

including the intent of the prosecutor, the curative measures that were undertaken by the

court, the improper conduct viewed in context and in light of the facts and circumstances

of the case, the cumulative effect of the remarks with any other errors in the record, and

the relative strength or weakness of the case. Judge v. State, 539 S.W.2d 340, 344

(Tenn. Crim. App. 1976).



              In the case at bar, the prosecutor referred to the defendant as a “big

kahuna” in an attempt to portray the defendant as the leader of a small scale drug ring.

As for the statement that the defendant had been selling drugs all day that day and that



                                            7
providing marijuana is “the regular” for him, the prosecutor was simply paraphrasing the

testimony of Mr. Everett. In light of this and the strength of the State’s case against the

defendant, the defendant has failed to show that the prosecutor’s argument was so

inflammatory or improper that it prejudiced the defendant. Therefore, this contention is

without merit.



              In sum, we find that the defendant received the effective assistance of

counsel. Accordingly, we affirm the trial court’s denial of the defendant’s motion for a

new trial.



                                                 ______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
NORMA McGEE OGLE, Judge




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