            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            APRIL 1997 SESSION
                                                   FILED
                                                  September 17, 1997

                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk

STATE OF TENNESSEE,               )     NO. 02C01-9612-CC-00480
                                  )
      Appellee                    )     MADISON COUNTY
                                  )
V.                                )     HON. WHIT LAFON, JUDGE
                                  )
CARL ALEXANDER COLE,              )     (Sale of Cocaine and Sentencing)
                                  )
      Appellant                   )
                                  )


FOR THE APPELLANT                       FOR THE APPELLEE

Clifford K. McGown, Jr.                 John Knox Walkup
113 North Court Square                  Attorney General and Reporter
Waverly, Tennessee 37185                450 James Robertson Parkway
                                        Nashville, Tennessee 37243-0493
George Morton Googe
District Public Defender                Elizabeth T. Ryan
227 West Baltimore Street               Assistant Attorney General
Jackson, Tennessee 38301                450 James Robertson Parkway
                                        Nashville, Tennessee 37243-0493
Jeffrey J. Mueller
Assistant Public Defender               James G. Woodall
227 West Baltimore Street               District Attorney General
Jackson, Tennessee 38301                225 Martin Luther King Drive
                                        Jackson, Tennessee 38302-2825

                                        Shaun A. Brown
                                        Assistant District Attorney General
                                        225 Martin Luther King Drive
                                        Jackson, Tennessee 38302-2825




OPINION FILED:______


AFFIRMED


William M. Barker, Judge
                                        Opinion

      The Appellant, Carl Alexander Cole, appeals as of right his conviction and

sentence for the sale of more than 0.5 grams of cocaine. He argues on appeal that:

      (1)    The trial court erred in refusing to permit him to develop proof
      concerning policies and procedures with regard to the use of informants
      in undercover drug purchases and in refusing his request to make an
      offer of proof.

      (2)    The trial court erred in refusing to permit him to question the
      confidential informant about the informant’s background and
      employment history.

       (3)     The sentence imposed by the trial court was excessive and the
       trial court erred by not sentencing him to an alternative sentence, such
       as the community correction program.

We have reviewed the record on appeal and find no merit to the Appellant’s argument.

We affirm.

                                  Factual Background

       On May 18, 1994, around 10:30 p.m., officers Penney and Mills met a

confidential informant at a cemetery on Paul Coffman Drive in Jackson to arrange an

undercover drug purchase. Officer Penney equipped the informant with a hidden

radio transmitter to enable the officers to listen to the drug transaction and gave him

$100.00 to buy drugs.

       The confidential informant, followed by the officers, went to a house on the

northeast corner of Hays and Eden Streets and knocked on the door. When the door

opened, the informant asked for the Appellant and was told to go to an alley off of

Eden Street. The informant got back into his car and drove down Eden Street. He

pulled into the designated alley where the Appellant got into his car and sold him five

white rocks presumed to be crack cocaine for $100.00. When the transaction was

concluded, the informant left the Eden Street alley and met the police officers back at

the cemetery. The substance was later analyzed by the Tennessee Bureau of

Investigation’s Crime Laboratory and it was confirmed that it contained cocaine.




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       On May 19, 1996, after a jury trial, the Appellant was found guilty of the sale of

more than 0.5 grams of cocaine. At a later sentencing hearing, the trial court

sentenced him to ten years imprisonment in the Tennessee Department of Correction

to be served consecutively to a prior unserved sentence. The Appellant now appeals.

                                             I

       The Appellant first argues that the trial court erred by refusing to permit him to

develop proof concerning policies and procedures with regard to the use of informants

in undercover drug purchases and in refusing his request to make an offer of proof.

This issue is without merit.

       According to the Appellant’s theory, the outcome of his case depended on

whether the jury believed the testimony of Dwayne Yarbrough, the informant in this

case, regarding the drug transaction. Consequently, the Appellant sought to discredit

the informant’s testimony by asking Officer Penney what qualities the police looked for

in confidential informants and what qualities the police had considered when

Yarbrough was hired. The trial court, however, only permitted testimony with regard to

general police policy on confidential informant hiring. It excluded all information

pertaining to what the police had considered when they hired this informant because

Officer Penney testified that he had not hired Yarbrough and, therefore, had no

personal knowledge of what those considerations were.

       The Appellant argues that the trial court violated his right to cross-examine

officer Penney. We cannot agree with the Appellant. In Tennessee, “[a] witness may

not testify to a matter unless evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter.” Tenn. R. Evid. 602. Here, it was

undisputed that Officer Penney had no personal knowledge of what was considered

with regard to the confidential informant’s hiring. Thus, the trial court correctly

excluded the disputed testimony.

       The Appellant also attempted to question Officer Penney regarding what factors

he had considered when he hired confidential informants in other unrelated cases.

                                             3
The trial court excluded the line of questions stating that such information was

irrelevant. We agree with the trial court. See Tenn. R. Evid. 401. What qualifications

Officer Penney had considered for confidential informants in other unrelated cases

had no significance here.

       The Appellant also argues that the trial court refused to allow him to make an

offer of proof of the excluded testimony. It is correct that the trial court refused to

allow the Appellant to make an offer of proof while both parties were still presenting

their proof. However, the trial court also told the Appellant: “I’m going to let you put

the proof in after the case is over.” The trial court did not refuse to allow the Appellant

to offer proof into the record; the trial court merely asked the Appellant to wait until the

trial was concluded. The record does not show that the Appellant sought to make an

offer of proof after the evidence was taken.

                                             II

       The Appellant next argues that trial court erred in refusing to permit him to

question the confidential informant about the informant’s background and employment

history. This issue is without merit.

       The Appellant’s counsel conducted extensive cross-examination of the

informant. The informant admitted that he had used drugs in high school and that he

had been involved in more than fifty undercover drug purchases, earning between

$50.00 and $100.00 for each drug purchase. He said he was doing undercover work

partly to earn money and partly because his brother had been a drug abuser and that

he wanted to make a difference in society. The only cross-examination the trial court

did not permit was where the informant lived and worked at the time of the trial. We

find that the trial court correctly excluded that testimony. Where the informant lived

and worked two years after the undercover drug purchase occurred was irrelevant to

the Appellant’s trial on the merits. See Tenn. R. Evid. 401; Tenn. R. Evid. 402.

Moreover, to disclose such information in a public forum would not be prudent



                                             4
because the informant was under partial police protection from vengeful drug dealers

who had been caught as a result of the informant’s undercover activities.

       The Appellant also argues that the trial court improperly commented on the

informant’s credibility. The complained-about comment was after the following

question and answer:

       Q:            How much money do you believe you’ve made off your
       work for the drug task force?
       A:            I can’t recall.
       The Court: Say’s he don’t know.

Even though the trial court should have refrained from interjecting comments into the

Appellant’s cross-examination, we do not find that these comments had any effect on

the informant’s credibility or affected the result of the trial on the merits. See Tenn. R.

Crim. P. 52(a); see also State v. Gregg, 874 S.W.2d 643 (Tenn. Crim. App. 1993).

The error, if any, was harmless.

                                            III

       The Appellant finally argues that the sentence imposed by the trial court was

excessive and that the trial court erred by not sentencing him to an alternative

sentence, such as the community correction program. Both issues are without merit.

       When an Appellant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d)

(1990). The burden of showing that the sentence is improper is upon the appealing

party. Id Sentencing Commission Comments. This presumption, however, is

conditioned upon an affirmative showing in the record that the trial court considered

the sentencing principles and all relevant facts and circumstances. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991).

       The Appellant first argues that he was presumed eligible for alternative

sentencing pursuant to Tennessee Code Annotated § 40-35-102. The statute

provides that standard offenders convicted of Class C, D, or E felonies are presumed




                                             5
favorable candidates for alternative sentencing. The Appellant was convicted of a

Class B felony and is not presumed a favorable candidate for alternative sentencing.

       The sentence range for sale of cocaine for a Range I offender is eight to twelve

years. The trial court sentenced the Appellant to ten years imprisonment. We agree

with the trial court’s judgment.

       Two enhancement factors are applicable to the Appellant. We find that he has

a history of criminal convictions and criminal behavior. See Tenn. Code Ann. § 40-35-

114(1) (Supp. 1996). The Appellant’s extensive criminal record includes one

vandalism conviction, one inciting to riot conviction, one resisting arrest conviction,

four driving on a revoked licence convictions, one carrying a prohibited weapon

conviction, and two grand larceny convictions. The Appellant has also shown a history

of unwillingness to comply with conditions of release into the community in that he has

failed to pay fines and court costs in prior cases and has failed to perform required

community service work. See Tenn. Code Ann. § 40-35-114(8).

       The Appellant argues that the trial court should have considered, as a

mitigating factor, that his conduct neither caused nor threatened serious bodily injury

to anybody. See Tenn. Code Ann. § 40-35-113(1), (9) (1990). However, when the

sale of drugs to the public is involved, this mitigating factor does not carry much

weight. State v. Mann, No. 02C01-9504-CC-00101 (Tenn. Crim. App., Jackson, Oct.

18, 1995), permission to appeal denied (April 1, 1996).

       We affirm the Appellant’s conviction and sentence.




                                             6
                                 __________________________
                                 WILLIAM M. BARKER, JUDGE


CONCUR:



__________________________
JOSEPH M. TIPTON, JUDGE



__________________________
DAVID G. HAYES, JUDGE




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