         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   November 7, 2001 Session

            STATE OF TENNESSEE v. TORAYO OLANDIS BROWN

                      Appeal from the Circuit Court for Hardeman County
                          No. 6300     Jon Kerry Blackwood, Judge



                    No. W2000-00472-CCA-R3-CD - Filed February 4, 2002


The defendant, Torayo Olandis Brown, was convicted of possessing with intent to deliver more than
.5 grams of cocaine, a class B felony. The trial court imposed a sentence of eight years and nine
months, ordering eight months to be served in the local jail and the balance to be served in a
community corrections program. In this appeal of right, the defendant contends that (1) the evidence
is insufficient to support his conviction; (2) the trial court erred by allowing the state to impeach him
with a prior conviction; and (3) the state improperly argued that he was impeached by the prior
conviction. Because of plain error in the trial court’s failure to provide a limiting instruction relating
to the impeachment evidence, the judgment is reversed and the cause is remanded for a new trial.

          Tenn. R. App. P. 3; Judgment of the Trial Court Reversed and Remanded

GARY R. WADE, P.J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Jeannie Kaess, Bolivar, Tennessee, for the appellant, Torayo Olandis Brown.

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

                                               OPINION

        On February 15, 1999, Sergeant Greg Brown of the Whitesville Police Department detected
by radar a car traveling forty-seven miles per hour in a thirty-mile-per-hour speed zone. Sgt. Brown
activated his blue lights and followed the car. As the car slowed to a stop, two black males jumped
from the backseat and ran in opposite directions, leaving the two back doors open. The defendant,
who was driving, and Cedric Jones, who was the front seat passenger, remained in the vehicle.

        Sgt. Brown ordered the two men to place their hands on the ceiling of their car while he
called for back-up. While he waited for assistance, Sgt. Brown looked around the car to determine
whether the fleeing passengers had discarded anything. He found no drugs or weapons. Ten minutes
later, Deputy Michael Kennimore of the Hardeman County Sheriff’s Department arrived to assist.
Sgt. Brown removed the defendant from the car, handcuffed him, and placed him in the backseat of
his patrol car. Deputy Kennimore removed Jones from the car and placed him on the ground to
apply handcuffs. As he made the arrest, Deputy Kennimore observed a small brown pill bottle on
the ground next to Jones’ head. He handed the bottle to Sgt. Brown, who opened it and observed
several small pieces of a solid, milky-white substance resembling crack cocaine. When the officers
searched the car, they found no drugs or drug paraphernalia. Jones and the defendant were arrested
and taken to the Whitesville Police Department. The two men who left the scene were never found.

        There were thirty-one small pieces inside the bottle. Laboratory tests established that the
bottle contained 1.8 grams of cocaine base, or crack cocaine.

        At trial, the defendant testified that he borrowed the car from his cousin, Angela. He claimed
that he picked up Jones, also a cousin, and drove him to Whitesville to find his mother. According
to the defendant, they encountered a man named Torrell McKinney, whom they had known for some
time, and another unknown individual. The defendant agreed to drive McKinney and his companion
to McKinney’s girlfriend’s house. The defendant claimed that when he was stopped by police,
McKinney and his companion jumped from the backseat and ran away. The defendant contended
that he had never seen the pill bottle and insisted that the drugs were not his.

       Jones, who was tried jointly with the defendant, provided essentially the same account. He
acknowledged, however, that he initially informed officers that the drugs belonged to the defendant
and that the defendant had thrown them out the back door. At trial, Jones recanted and claimed that
he implicated the defendant only to protect himself from arrest.

                                                    I
        The defendant first argues that the evidence was insufficient because the state failed to prove
beyond a reasonable doubt that the substance tested by the TBI crime lab was the same substance
admitted into evidence at trial. 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.
Goodman, 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982). The purpose of the chain of custody
requirement is to “demonstrate that there has been no tampering, loss, substitution, or mistake with
respect to the evidence.” State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993). 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. State
v. Ferguson, 741 S.W.2d 125, 127 (Tenn. Crim. App. 1987). This rule does not require absolute
certainty of identification. Ritter v. State, 462 S.W.2d 247, 250 (Tenn. Crim. App. 1970). Absent
sufficient proof of the chain of custody, however, the “evidence should not be admitted . . . unless
both identity and integrity can be demonstrated by other appropriate means.” Neil P. Cohen et al.,
Tennessee Law of Evidence § 9.01[13][c] (4th ed. 2000). A leading Tennessee treatise provides as
follows:




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                 The concept of a “chain” of custody recognizes that real evidence may be
        handled by more than one person between the time it is obtained and the time it is
        either introduced into evidence or subjected to scientific analysis. Obviously, any of
        these persons might have the opportunity to tamper with, confuse, misplace, damage,
        substitute, lose and replace, or otherwise alter the evidence or to observe another
        doing so. Each person who has custody or control of the evidence during this time
        is a “link” in the chain of custody. Generally, testimony from each link is needed to
        verify the authenticity of the evidence and to show that it is what it purports to be.
        Each link in the chain testifies about when, where, and how possession or control of
        the evidence was obtained; its condition upon receipt; where the item was kept; how
        it was safeguarded, if at all; any changes in its condition during possession; and
        when, where and how it left the witness’s possession.

Id. The issue addresses itself to the sound discretion of the trial court; its determination will not be
disturbed in the absence of a clearly mistaken exercise of such discretion. State v. Beech, 744
S.W.2d 585, 587 (Tenn. Crim. App. 1987); State v. Johnson, 673 S.W.2d 877, 881 (Tenn. Crim.
App. 1984). Reasonable assurance, rather than absolute assurance, is the prerequisite for admission.

        Here, Kay Sheriff of the TBI identified the envelope containing the cocaine by its lab number,
the defendant’s name, her initials, and the officer’s name. Ms. Sheriff recognized her initials and
the date on the tape she had used to seal the envelope. When she opened the envelope at trial, she
identified the amber pill bottle by the laboratory label, her initials, and the handwritten laboratory
number. She observed that the bottle was still sealed with tape containing her initials. In our view,
the evidence presented at trial was properly identified as that received by the TBI.

                                                    II
         The defendant next contends that there was insufficient evidence from which a rational trier
of fact could have concluded beyond a reasonable doubt that he possessed with the intent to deliver
over .5 grams of cocaine. On appeal, of course, the state is entitled to the strongest legitimate view
of the evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their
testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as the trier
of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of
the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light
most favorable to the state, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983). Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas
v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992).



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       Tennessee Code Annotated § 39-17-417 provides in pertinent part as follows:

              (a) It is an offense for a defendant to knowingly:
                                               ***
              (4) Possess a controlled substance with intent to manufacture, deliver or sell
       such controlled substance.
                                               ***
              (c) A violation of subsection (a) with respect to:
              (1) Cocaine is a Class B felony if the amount involved is point five (.5)
       grams or more of any substance containing cocaine and, in addition thereto, may be
       fined not more than one hundred thousand dollars ($100,000) . . . .

Tenn. Code Ann. § 39-17-417(a)(4), (c)(1). Tennessee Code Annotated § 39-17-402(6) defines
“delivery” as “the actual, constructive, or attempted transfer from one person to another of a
controlled substance, whether or not there is an agency relationship.” Additionally, Tennessee Code
Annotated § 39-17-419 states that “[i]t may be inferred from the amount of a controlled substance
or substances possessed by an offender, along with other relevant facts surrounding the arrest, that
the controlled substance or substances were possessed with the purpose of selling or otherwise
dispensing.” Possession, which may be either actual or constructive, can be established by evidence
that the defendant has the ability and the intent to exercise dominion or control over the substance.
State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991).

        Perhaps the most compelling piece of evidence against the defendant was Jones’ statement
to police that the pill bottle belonged to the defendant and that the defendant had thrown it out the
back passenger door. This pre-trial statement was clearly hearsay and was admissible only as non-
substantive evidence to impeach Jones. See State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000).
There was no objection, however, to the admission of this evidence and the trial court failed to
provide an instruction limiting the value of the evidence. When a defendant fails to object, the jury
may consider that evidence for its “natural and probative effects as if it were in law admissible.” Id.
at 280 (quoting State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981)). Thus, the jury could
consider this pre-trial statement by Jones as substantive evidence of the defendant’s guilt.

        The evidence would be insufficient to support the finding of guilt without the pre-trial
statement of Jones. Yet Jones’ pre-trial statement clearly allowed the jury to conclude that the
defendant possessed the drugs. Furthermore, the quantity and packaging of the cocaine justified the
jury’s conclusion that it was possessed for the purpose of dispensing it. See Tenn. Code Ann. § 39-
17-419. This issue lacks merit.

                                                III
       Although not raised as error, this court in its discretion may notice at any time an error
“where necessary to do substantial justice.” Tenn. R. Crim. P. 52(b). There are five factors which
must be present for a court to determine “plain error” exists:



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       (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.”

Smith, 24 S.W.3d at 282 (citing State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.
1994)). In our view, the failure of the trial court to give a limiting instruction relating to the
introduction of Jones’ hearsay statement was plain error.

         Our supreme court has recognized that “the failure to give the limiting instruction may
amount to fundamental error constituting grounds for reversal, even in the absence of a special
request [by counsel].” State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). The court, however,
noted that such action was limited to those cases where “the impeaching testimony is extremely
damaging, the need for the limiting instruction is apparent, and the failure to give it results in
substantial prejudice to the rights of the accused.” Id. In Reece, our high court concluded that the
prior inconsistent statements were apparently considered by the jury as substantive evidence of guilt,
thereby resulting in “substantial prejudice” to the defendant. Id. The case was remanded for a new
trial. Id.

        In Smith, our supreme court determined that the trial court’s failure to give such an
instruction was not plain error. 24 S.W.3d at 284. In that case, however, both defense counsel and
the defendant agreed at trial to forego the objection. Id. at 283-84. Thus, the court concluded that
the “considered and deliberate choice to waive a proper objection in order to gain a tactical
advantage” precluded a finding of plain error. Id. at 284.

        This case is distinguishable from Smith and is more akin to Reece. The impeaching
testimony was critical for the state. Without it, the evidence is insufficient to support the verdict of
guilt. Thus, the failure to provide a limiting instruction clearly resulted in substantial prejudice to
the accused. Most importantly, there is no indication that the failure to object was tactical, nor can
this court fathom why the failure to object could have qualified as a reasonable strategy.

       The appropriate remedy is a reversal of the conviction and a remand for new trial. See State
v. Emit Keith Cody, No. E2000-02188-CCA-RM-CD (Tenn. Crim. App., at Knoxville, Nov. 28,
2000) (reversed and remanded for new trial where, without admission of prior statement for
substantive purposes, evidence would have been insufficient for the conviction).

                                                 IV
       Although a new trial is warranted on a plain error basis, there are other issues. The defendant
next contends that the trial court should not have allowed the state to impeach him using his prior
conviction for simple possession. Tennessee Rule of Evidence 609 provides that a witness may be
impeached by a conviction for a crime involving dishonesty or having a possible sentence of greater
than one year. Tenn. R. Evid. 609. No prior notice was given. The conviction was a misdemeanor


                                                  -5-
that did not involve a crime of dishonesty. Thus, the state did not comply with the terms of Rule
609. Rule 609, however, is not the only avenue by which a prior conviction may be used to impeach.
Neil P. Cohen et al., supra, § 6.09[2][b]. In State v. Bray, this court held that while a prior
misdemeanor drug conviction cannot be used to attack a testifying defendant’s credibility, the
defendant is not allowed to use this shield as a sword by giving false testimony. 669 S.W.2d 684,
687 (Tenn. Crim. App. 1983).

        Upon being asked during cross-examination if the cocaine found by Deputy Kennimore
belonged to Cedric Jones, the defendant answered, “I don’t really know whose it was. I never been
around a drug dealer.” After defense counsel objected, the defendant again stated, “I said I ain’t
never been around no drug dealer. I don’t know what he do, or nothing.” During a jury-out hearing,
the state obtained permission to use the defendant’s simple possession conviction to impeach this
statement. While ruling that Rule 609 did not permit use of the conviction to impeach, the trial court
observed that the defendant may have been caught in a “falsehood” and the state had the right to
impeach his credibility. Upon questioning by the state, the defendant admitted that he had pled
guilty to misdemeanor possession of drugs on November 19, 1998. Additionally, the trial court
instructed the jury that it could use the fact of the defendant’s prior conviction only in assessing the
defendant’s credibility as a witness.

        In our view, the defendant’s unsolicited remark “opened the door” to cross-examination
regarding his prior conviction for simple possession. A witness cannot be permitted to create a false
impression before the jury and expect the state to do nothing. See id.; see also State v. Randy Joy,
No. 02C01-9705-CC-00183 (Tenn. Crim. App., at Jackson, Nov. 25, 1997). Further, the question
posed by the state was relevant and not designed to invite an untruthful response. Cf. Hatchett v.
State, 552 S.W.2d 414 (Tenn. Crim. App. 1977) (stating that “[t]he state cannot ask a witness an
irrelevant but prejudicial question and then, under a theory of impeachment, predicate a second
irrelevant and prejudicial question upon the defendant’s response”); State v. Hurd, No. E1999-
01341-CCA-R3-CD (Tenn. Crim. App., at Knoxville, April 10, 2001) (holding that the state may
not circumvent the requirements of Rule 609 by questioning the defendant on an irrelevant matter
in a manner that invites untruth). The trial court did not abuse its discretion by allowing the state
to cross-examine the defendant about his prior conviction for simple possession.

                                                    V
        Finally, the defendant contends that the state improperly argued that the defendant’s
testimony had been impeached by his conviction for simple possession. In general, closing argument
is subject to the trial court's discretion. Counsel for both the prosecution and the defense should be
permitted wide latitude in arguing their cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809
(Tenn. 1994). Arguments must be temperate, predicated on evidence introduced during the trial,
relevant to the issues being tried, and not otherwise improper under the facts or law. State v.
Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The bounds of proper closing argument are
delineated by the facts in evidence. State v. Pulliam, 950 S.W.2d 360, 368 (Tenn. Crim. App. 1996).
Conversely, facts not in evidence may not be the subject of comment by counsel during closing
argument. State v. Mackey, 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982).


                                                  -6-
        In this instance, the district attorney general remarked “[the defendant] said he didn’t have
anything to do with drug dealers or drugs. And you heard that he has been found guilty on an event
of November of 1998 of that. And that’s to be used by you only for purpose of judging whether or
not he is telling the truth.” Because it was predicated on evidence introduced during trial, and
limited to impeachment of the witness, the argument was not improper. Thus, this issue also lacks
merit.

       For the reasons stated, the judgment is reversed and the cause is remanded for a new trial.



                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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