             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE                  FILED
                          MARCH 1998 SESSION
                                                             July 9, 1998

                                                         Cecil W. Crowson
STATE OF TENNESSEE,          )                          Appellate Court Clerk
                             )
             Appellee,       )    No. 01C01-9704-CR-00118
                             )
                             )    Davidson County
v.                           )
                             )    Honorable J. Randall Wyatt, Jr., Judge
                             )
MELVIN LEWIS PEACOCK,        )    (Possession of three hundred grams or
                             )     more of cocaine for resale and unlawful
             Appellant.      )     possession of a weapon)


For the Appellant:                For the Appellee:

Mark J. Fishburn                  John Knox Walkup
100 Thompson Lane                 Attorney General of Tennessee
Nashville, TN 37211                      and
                                  Lisa A. Naylor
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  Victor S. Johnson, III
                                  District Attorney General
                                          and
                                  Katrin Novak Miller
                                  Assistant District Attorney General
                                  Washington Square
                                  222 2nd Avenue, North
                                  Nashville, TN 37201-1649




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Melvin Lewis Peacock, appeals as of right from his jury

convictions in Davidson County for possession with intent to sell three hundred grams

or more of a substance containing cocaine, a Class A felony, and for the unlawful

possession of a weapon, a Class E felony. The trial court sentenced the defendant as

a Range I, standard offender to twenty years in the custody of the Department of

Correction for the cocaine possession conviction and to a concurrent two-year sentence

in the custody of the Department of Correction for the weapon possession conviction.

The trial court ordered the defendant to serve the twenty-year sentence consecutively

to an earlier sentence. The defendant presents the following issues for our review:

              (1) the trial court erred when it denied the defendant’s motion
              to suppress the evidence seized by the police pursuant to a
              search warrant on the basis that an exact copy of the warrant
              was not left with the defendant;

              (2) the trial court erred in denying the defendant’s motion in
              limine to preclude the state from introducing into evidence five
              car titles found in a safe; and

              (3) the trial court erred in permitting the state to recall Curtis
              Peacock as a witness during its case-in-chief.

We affirm the trial court’s judgment of conviction.



              This case involves a search of the defendant’s apartment pursuant to a

search warrant on December 9, 1994. Upon entering the apartment, Officer Donegan

found three people: (1) the defendant, (2) Curtis Peacock, the defendant’s cousin and

roommate, and (3) George Logan, the defendant’s friend and a recent resident of the

apartment. During the search, officers discovered about seven hundred grams of

cocaine located in a safe. The officers also found a weapon and undisclosed amounts

of marijuana. Later, on January 25, 1996, five car titles in the defendant’s name were

discovered in the safe while Officer Donegan was gathering information regarding the




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safe’s manufacturer and serial numbers pursuant to a request by the defendant’s

attorney.



                               I. MOTION TO SUPPRESS

              The defendant contends that the trial court erred by refusing to suppress

the evidence seized from his apartment. The defendant submits that the failure of the

police to leave a copy of the search warrant with him makes the search illegal and the

evidence inadmissible under Rule 41(c), Tenn. R. Crim. P. The state counters that the

officer did in fact give to the defendant a copy of the warrant as required by Rule 41(c).

We agree.



              At the suppression hearing, the defendant testified that neither he nor

anyone else living at the defendant’s residence was given a copy of the search warrant

executed by Officer Donegan. He said that he did not see a copy of the search warrant

or the inventory list until copies were forwarded to him by his attorney. The defendant

stated that he requested a copy from Officer Donegan and that the officer replied that

he would get him one. He said that at no point did Officer Donegan read the search

warrant to him, show it to him, or tell him that a copy would be left at the residence.

The defendant testified that he had been incarcerated since his arrest.



              Officer John Donegan testified that he obtained a search warrant to

search the defendant’s residence. He said that upon entering the residence, he found

the defendant, Curtis Peacock, and George Logan. Officer Donegan said that once the

apartment was secured, the three suspects were gathered together and read their

rights. He said that the search of the defendant’s premises revealed about seven

hundred grams of cocaine, unspecified quantities of marijuana, and a weapon.




                                             3
              Officer Donegan testified that he obtained two copies of the search

warrant and that he gave the defendant one of the copies to read as the search was

being executed. Officer Donegan stated that he also compiled an inventory list of the

items seized during the search. He said that after the search he left an inventory list

with the defendant’s copy of the search warrant on the kitchen table at the residence.

Officer Donegan testified that he told the defendant that a list of the items seized would

be left with the defendant’s copy of the search warrant at the residence for safekeeping

purposes. He said that he left the copies at the residence because he knew that the

defendant was going to jail and would have difficulty keeping up with the inventory list.



              The trial court denied the defendant’s motion to suppress. It found that

Officer Donegan properly provided a copy of the warrant to the defendant and that he

left a copy of the warrant and inventory list on the table at the residence.



              A trial court’s findings of fact on a motion to suppress are conclusive on

appeal unless the evidence in the record preponderates against them. State v. Odom,

928 S.W.2d 18, 23 (Tenn. 1996). The application of the law to the facts as determined

by the trial court is a question of law that is reviewed de novo on appeal. State v.

Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).



              Rule 41(c) of the Tennessee Rules of Criminal Procedure provides in

pertinent part as follows:

              The magistrate shall prepare an original and two exact copies
              of the search warrant, . . . one of which shall be left with
              person or persons on whom the search warrant is served . . .
              . [T]he failure of the serving officer where possible to leave a
              copy with the person or persons on whom the search warrant
              is being served, shall make any search conducted under said
              search warrant an illegal search and any seizure thereunder an
              illegal seizure.

The intent of Rule 41(c) is to “secure the citizen against carelessness and abuse in the

issuance and execution of search warrants.” State v. Steele, 894 S.W.2d 318, 319


                                             4
(Tenn. Crim. App. 1994). Rule 41(d) states that the “officer taking property under the

warrant shall give to the person from whom or from whose premises the property was

taken a copy of the warrant and a receipt for the property taken or shall leave the copy

and receipt at a place from which the property was taken.” The provisions of Rule 41

are mandatory. Steele, 894 S.W.2d at 319.



               The suppression issue turns on whether Officer Donegan did in fact leave

a copy of the search warrant with the defendant in accordance with 41(c) and (d). Upon

review, we conclude that the evidence does not preponderate against the court’s finding

that Officer Donegan gave the defendant a copy of the warrant. Therefore, we hold that

the trial court properly denied the motion to suppress.



                                   II. MOTION IN LIMINE

              The defendant contends that the trial court erred when it denied the

defendant’s motion to prohibit the state from introducing into evidence at trial five car

titles that were discovered on January 25, 1996, in a safe seized from the defendant’s

apartment during the search on December 9, 1994. The defendant argues that a

prerequisite to introducing tangible evidence is that the “witness must be able to identify

the evidence or establish an unbroken chain of custody.” State v. Goodman, 643

S.W.2d 375, 381 (Tenn. Crim. App. 1982). Although the defendant admits that

identifying the titles as belonging to him is self-evident, he insists that the state failed to

establish the requisite chain of custody. Specifically, the defendant contends that the

state failed to demonstrate that there had not been any tampering, substitution, or

mistake during that period of time which elapsed between the initial search and the

discovery of the titles at issue. In addition, the defendant submits that this evidence

should have been excluded under Rules 403 and 602 of the Tennessee Rules of

Evidence. He argues that under Rule 403 the probative value is outweighed by the




                                               5
danger that the evidence will mislead the jury and that under Rule 602 the officer had

no personal knowledge of how the titles arrived in the safe.



              The state responds that the safe, and the car titles which it contained,

were secured in police custody after the search and that they were not tampered with in

any way. The state argues that the titles are highly relevant to the instant case and that

Officer Donegan had sufficient personal knowledge to testify regarding the contents of

the safe, in accordance with Rule 602. The state maintains that the trial court did not

err in denying the defendant’s motion in limine to prohibit the state from introducing the

car titles into evidence. We agree.



              The defendant filed a motion in limine to exclude the car titles found in the

safe on the ground that the state could not satisfactorily establish the chain of custody

of the titles or their location at the time of seizure. The trial court denied the motion,

stating that the evidence was admissible and that the circumstances in which the

evidence was found went to the weight of the evidence rather than its admissibility.

Although the circumstances in the instant case were unusual in that evidence is usually

discovered before it is seized and not the reverse, the officer’s explanation for the delay

in discovering the titles was found to be reasonable by the trial court.



              Officer Donegan stated that during the search of the defendant’s

residence in December 1994, the officers found a safe, approximately eighteen inches

square and weighing thirty to forty pounds, located under the kitchen sink. Officer

Donegan testified that to open the safe, it was necessary for him to hit the safe once or

twice with a sledge hammer. He said that the front door popped open, and he found

about seven hundred grams of cocaine in plastic bags inside the safe. He said that he

examined the inside of the safe and did not notice anything else at that time. He said

that the blow from the sledgehammer pushed a shelf inside the safe against the roof of



                                              6
the interior. Officer Donegan testified that the safe remained locked at the warehouse

until January 25, 1996, when Officer Donegan gathered information regarding the

safe’s serial number and manufacturer for the defendant’s attorney. He stated that as

he lowered the safe to the ground, he dropped the safe on a chair. He stated that he

immediately noticed a strong odor of cocaine. Officer Donegan said that he opened the

door of the safe and a large plastic baggie containing cocaine and loose cocaine fell

out. The car titles, listing the defendant and Curtis Peacock as owners, were among

the cocaine. He said that it appeared that the cocaine and the titles had been lodged

up against the roof of the safe and were knocked loose after he dropped the safe onto

the chair. Officer Donegan demonstrated for the court how the safe was opened and

the location of the shelf, drugs and car titles. At trial, the titles were admitted into

evidence for the purpose of establishing the defendant’s ownership of the safe. The

state did not introduce the additional cocaine into evidence.



              In determining the admissibility of tangible evidence, it is sufficient if the

evidence establishes a reasonable assurance of the identity of the evidence. State v.

Woods, 806 S.W.2d 205, 212 (Tenn. Crim. App. 1990). Absent a clear mistake or

abuse of discretion, the decision of the trial court concerning the sufficiency of evidence

as to the chain of custody will not be disturbed. Wade v. State, 529 S.W.2d 739, 742

(Tenn Crim. App. 1975); State v. Goodman, 643 S.W.2d 375, 381 (Tenn. Crim. App.

1982).



              In our view, the trial court properly determined that the state established a

chain of custody for the car titles. Officer Donegan testified that after he seized the

safe on December 9, 1994, he properly tagged it before sending it to the Vice

Warehouse for storage. He stated that the safe remained locked up at the warehouse

until he retrieved it on January 25, 1996. The trial court heard Officer Donegan’s

testimony and thoroughly investigated the unusual circumstances surrounding the



                                               7
discovery of the car titles. At the conclusion of the trial court’s hearing, the court was

satisfied that the officer’s explanation was credible and that the discovery of the titles

was reasonable under the circumstances of this case. W e hold that the evidence

supports the trial court’s determination that the police did not tamper with, substitute, or

make a mistake with the evidence while it was in police custody.



              As for the defendant’s contentions with respect to Rules 403 and 602,

Tenn. R. Evid., we note that the defendant asserted in his motion in limine that the titles

were excludable under these rules. However, at the hearing, the defendant did not

argue that the evidence should be excluded on the basis of Rules 403 and 602. Nor

did the trial court make a ruling regarding the admissibility of the evidence under these

rules. As stated by this court in State v. Kinner, 701 S.W.2d 224, 227 (Tenn. Crim.

App. 1985), “[t]he filing of a motion with the clerk without presenting it to the trial court

for determination is of no effect.” Moreover, “[a] trial judge will not be placed in error for

failing to consider something which was never presented to him.” Id.



              In any event, we believe that Officer Donegan’s testimony demonstrated

sufficient knowledge of the matters regarding the initial search and seizure, as well as

the facts surrounding the subsequent discovery of the hidden car titles, to comply with

the “personal knowledge” requirement in Rule 602. Furthermore, Rule 403 was not

violated. The probative value of the titles on the issue of ownership of the cocaine is

not substantially outweighed by the danger that the jury would have been unfairly

misled. The trial court did not abuse its discretion in admitting the evidence.



                                III. RECALL OF A WITNESS

              Finally, the defendant contends that the trial court erred in permitting the

state to recall Curtis Peacock as a witness during its case-in-chief. He submits that

Peacock’s testimony was so inconsistent and contradictory that it should have been



                                               8
excluded in its entirety. Relying on Taylor v. Nashville Banner Publishing Company,

573 S.W.2d 476, 482-83 (Tenn. App. 1978), the defendant argues that it is the rule of

law in this state that contradictory statements of a witness relating to the same fact

have the effect of “canceling each other out.” The state responds that this rule only

applies when the inconsistent testimony is unexplained and when neither version of the

witness’ testimony is corroborated by other evidence. Id. at 483. The state agrees that

the testimony of Curtis Peacock was inconsistent, and the state admits that it was not

corroborated by other testimony or facts. However, the state maintains that Peacock

explained the inconsistent testimony by testifying that he was nervous and had difficulty

hearing the questions, and thus, the rule from Taylor is inapplicable here. We agree.



              Curtis Peacock’s testimony was inconsistent the first time he testified.

Initially, Peacock testified during direct examination by the state that he saw the safe

possibly a week or two before the search. Then the witness stated that he first noticed

the safe four to five days before the search and that he was not sure whether the safe

was there before the arrival of Logan. He said that Logan began to live with the

defendant two to three weeks before the search. Under cross-examination, the witness

stated that he guessed that he did not see the safe until after Logan arrived. Upon

redirect examination, Peacock testified that he saw the safe before Logan arrived. He

then stated that he was not sure when he first noticed the safe. Peacock changed his

testimony two more times. On redirect examination, he said he remembered telling the

state’s attorney that he saw the safe before Logan arrived but that he was no longer

sure and was confused. On recross examination, he testified that Logan was there

before he saw the safe, and on the subsequent redirect examination, he again said that

he saw the safe before Logan arrived.



              Peacock was recalled by the state the next day to clarify his testimony.

He testified that he saw the safe before Logan arrived and said that he contradicted his



                                             9
own testimony because he was nervous and confused the day before. He did not

change his testimony during the remainder of the examination. On cross-examination,

he stated that he saw the safe before Logan arrived and that he was telling the truth.



              The decision to recall an excused witness is vested within the discretion of

the trial court. State v. McAlister, 751 S.W.2d 436, 438 (Tenn. Crim. App. 1987). The

trial court’s decision to allow a party to recall a witness will only be disturbed upon a

showing of abuse of discretion. State v. Caughron, 855 S.W.2d 526, 539 (Tenn. 1993).



              We agree that the testimony first given by Curtis Peacock was confusing

and inconsistent. However, the defendant’s claim that Curtis Peacock’s contradictory

testimony was not explained on recall does not negate the fact that the trial court had

the discretion to allow the testimony. We see no abuse of discretion upon the record

before us.



              In consideration of the foregoing and the record as a whole, the

judgments of conviction are affirmed.




                                                  _______________________________
                                                  Joseph M. Tipton, Judge




CONCUR:




David H. Welles, Judge




Joe G. Riley, Judge




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