        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          ATJACKSON
                                 April 9, 2013 Session

                STATE OF TENNESSEE v. ANTHONY WOODS

                  Appeal from the Circuit Court for McNairy County
                       No. 2554     J. Weber McCraw, Judge


                  No. W2012-01871-CCA-R3-CD - Filed July 3, 2013


A jury convicted the defendant, Anthony Woods, of one count of facilitation of intent to
deliver less than 0.5 grams of cocaine, a Class D felony, and one count of simple possession
of marijuana, a Class A misdemeanor. The trial court sentenced the defendant to concurrent
sentences of six years for the facilitation conviction and to eleven months and twenty-nine
days for the simple possession conviction. The physical evidence in the case was seized
pursuant to a search warrant issued for the home of the defendant’s girlfriend and the
defendant’s teenage daughter. The defendant’s original appeal was dismissed due to an
untimely notice of appeal. State v. Woods, No. W2010-01301-CCA-R3-CD, 2012 WL
134243, at *2 (Tenn. Crim. App. Jan. 13, 2012). The defendant then brought a post-
conviction petition, and the post-conviction court granted the defendant this delayed appeal
pursuant to Tennessee Code Annotated section 40-30-113(a)(1). The defendant challenges
the sufficiency of the evidence, the trial court’s refusal to admit an audio recording or
transcript of the preliminary hearing into evidence, and the legality of the search warrant.
Because the search warrant failed to adequately establish the credibility of the confidential
informant and because the defendant had standing to challenge the warrant, we reverse the
defendant’s convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
                                Charges Dismissed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and J EFFREY S. B IVINS, JJ., joined.

Scottie O. Wilkes, Memphis, Tennessee, for the appellant, Anthony Woods.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Senior Counsel; Mike
Dunavant, District Attorney General; and Bob Gray, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                               OPINION

                             I. Factual and Procedural Background

                                  A. Pretrial and Trial Testimony




       The defendant was indicted for the possession of ecstasy tablets with intent to sell or
deliver, for resisting arrest,1 for simple possession of marijuana, and for possession of more
than 0.5 grams of cocaine with the intent to deliver. Prior to trial, the defendant moved to
suppress all the evidence seized pursuant to the search warrant.

        At the suppression hearing, Agent Michael Gilbert of the Twenty-Fifth Judicial
District Drug Task Force testified that on February 14, 2009, he obtained a warrant to search
Tammy Walker’s residence based on a report by a confidential informant that she had been
inside the residence in the previous seventy-two hours and had seen crack cocaine inside the
residence. Agent Gilbert had worked with the informant on several cases in a four-year
period. Agent Gilbert’s affidavit stated that the informant, who was familiar with the
appearance of cocaine, told him that Ms. Walker was selling crack cocaine and that the
informant had seen her in possession of crack cocaine. The affidavit further recited that
“[t]he CI has provided Reliable & Credible information in the past concerning crack cocaine
and the trafficking of crack cocaine.”

        Agent Gilbert took no steps to verify the informant’s information. He did not wire the
informant or attempt a controlled buy and conceded that the informant might just have
harbored some resentment against Ms. Walker. According Agent Gilbert, the police had
obtained convictions from prior information provided by this informant, but he did not put
this fact into the affidavit. The warrant covered all persons on the premises at the time as
well as the residence. Agent Gilbert testified he had participated in a prior search of Ms.
Walker’s home pursuant to a warrant. He did not know who the informant was for the prior
search but denied it was the same informant. He acknowledged that nothing was found
during the prior search.



        1
          The charges for resisting arrest and the charges related to the ecstasy tablets were both dismissed
prior to trial. At trial, a witness for the State testified regarding tablets in the defendant’s pocket. The
defendant moved for a mistrial, but the trial court denied the motion because the testimony had not indicated
that the tablets were illegal drugs. The State agreed to elicit testimony that he was not being charged with
any offense related to the pills.

                                                    -2-
      Ms. Walker, her daughter, and the defendant were present when the search was
conducted. Agent Gilbert testified that Ms. Walker was patted down to the extent feasible
with no female officer present. Drugs were found in the kitchen, bedroom, and on the
defendant’s person. According to Agent Gilbert, the defendant then stated that all the drugs
belonged to him.

        Agent Gilbert testified that he understood that the defendant “stayed there some, off
and on, but mainly stayed in Bolivar.” Agent Gilbert found a few of the defendant’s clothes
in a corner beside the bed, but it appeared that primarily Ms. Walker and her daughter lived
there. He found no mail belonging to the defendant, and the 911 service showed that only
Ms. Walker lived there. Only one car was at the residence.

        The court found that the statement in the warrant noting that the informant’s name and
other information had been revealed to the judge who issued the warrant was not appropriate
and that the magistrate should not have considered information outside the four corners of
the affidavit. Nevertheless, the trial court concluded that the defendant lacked standing to
challenge the search.

       On February 19, 2010, the defendant was tried by a jury. Agent Gilbert testified that
a crack user could be distinguished from a dealer because a user would carry smaller
quantities (less than seven grams), would have paraphernalia such as a crack pipe, and would
not carry much cash. A dealer, on the other hand, might have large amounts of cash in small,
worn bills.

       Agent Gilbert testified that he obtained a warrant because of a tip from an informant
who had seen Ms. Walker sell drugs to the informants companion. In executing the search
warrant, officers approached Ms. Walker’s home as her teenage daughter was taking out the
trash. They walked in the open door. Ms. Walker was not restrained but was patted down.
Agent Gilbert testified that they were not able to get a female officer to accompany them in
order to search her more thoroughly. Agent Gilbert handcuffed the defendant and searched
him, finding $2,053 in his pocket, with the lower denominations appearing worn. The cash
was in the defendant’s front pocket, and a wallet containing his ID was in his back pocket.

        Agent Gilbert testified that the defendant was taken into a bedroom and strip searched.
In the bedroom, Agent Gilbert recovered marijuana from a jacket pocket and what appeared
to be powder or crack cocaine from another jacket. Agent Holley, another officer, recovered
marijuana and a pill bottle containing what appeared to be crack cocaine from the kitchen.

       After the defendant had been searched and while his hands were handcuffed in front
of him, the defendant lunged at evidence lying on a dresser in the bedroom. Agent Gilbert

                                              -3-
believed the defendant was about to swallow evidence. To prevent medical harm and
destruction of evidence, officers held him and tried to prevent him from swallowing the
evidence. Regarding the drugs, the defendant said, “It’s all mine. Take me to jail.” He did
not volunteer an explanation for the money and no paraphernalia for ingesting crack or
marijuana were recovered.


       Agent Gilbert acknowledged that a rock of crack cocaine might not easily be found
during a pat-down. He agreed that the defendant’s tank top had one strap stretched as a result
of the altercation. He also acknowledged that police used an ink pen to try to remove
evidence from the defendant’s mouth but denied that his tooth was broken, that his mouth
bled, or that he requested medical attention. Nothing was found in his mouth.

       During cross-examination, Agent Gilbert also testified that he did not recall his
testimony from the preliminary hearing, particularly that the informant had only witnessed
the presence, not purchase, of drugs. Defense counsel sought to refresh his memory, but the
State objected to the use of counsel’s notes rather than a transcript. Defense counsel then
cross-examined Officer Gilbert regarding his testimony at the preliminary hearing that: (1)
the General Sessions warrant was incorrect in listing Exhibit 3 as crack cocaine when it
should have been powder or a white substance; (2) officers, in restraining the defendant, “had
to choke him down”; (3) the defendant had broken teeth; and (4) that the confidential
informant had merely witnessed the possession, and not the sale, of crack cocaine at the
residence. Officer Gilbert did not recall any of his testimony at the preliminary hearing.2

       Agent Gilbert then testified that only a very small amount of powdered cocaine, 0.4
grams, was found in the jacket pocket, and only a small amount of marijuana was recovered
from the other jacket; a small amount of marijuana was also recovered from the kitchen. He
acknowledged that a coke can or apple could be used to ingest drugs but did not recall if
there were cans at the residence.

        Kim Holley, an agent with the Twenty-Fifth Judicial District Drug Task Force,


        2
         The record shows that Agent Gilbert’s testimony at the preliminary hearing was that the informant
did not allege that a sale had taken place but just that she saw crack cocaine. Regarding the altercation,
Agent Gilbert testified, “we – we started to choke him – or not choke him, but we started to – .... We started
to keep him from swallowing the narcotics.” He testified that crack cocaine was recovered from the brown
jacket in the bedroom, but ultimately changed his testimony to say that the substance in the bag was
powdered cocaine and that his arrest warrant was incorrect when it identified it as crack. He then testified
that both powder cocaine and crack were found in the pill bottle. He testified that he did not know who the
informant was for the prior, unfruitful, search, and that he was not aware the defendant had any teeth broken
or loosened.

                                                     -4-
participated in the search of Ms. Walker’s residence. He testified that Ms. Walker was
searched and that he witnessed Agent Gilbert recover the cash from the defendant. Agent
Holley testified that in the kitchen he found marijuana and a pill bottle with what he believed
to be crack cocaine. Agent Holley heard the altercation in the bedroom and saw that Agent
Gilbert had his arm around the defendant’s head or neck and Agent Roberts was trying to
remove something from his mouth. He did not see blood, he did not remember a broken
tooth, and the defendant did not ask for medical treatment. The defendant then claimed
ownership of the drugs Agent Holley had found in the kitchen. On cross-examination, Agent
Holley testified that in searching the house, he did not find any scales or small bags such as
dealers typically use to package cocaine. Ms. Walker would not have been patted down but
would have been asked, for example, to pull out her pockets. Agent Holley did not recall if
he searched her. He acknowledged that Agent Gilbert’s hold would be called “detaining,
choking” and that he had his arm over the defendant’s throat. He also acknowledged he
might have said to the defendant, “Everything we found is yours, right?” Agent Holley
testified that possession of numerous bills in denominations less than twenty would indicate
that drugs were being held for sale. He did not witness excessive force.

      Jennifer Sullivan, a forensic scientist with the Tennessee Bureau of Investigation
crime laboratory, testified that she tested the evidence submitted by the Selmer Police
Department and determined it was 8.5 total grams of marijuana, 0.4 grams of powder
cocaine, and 4.2 grams of cocaine base.

        The defendant’s sole witness was Tammy Walker, who testified that she did not sell
cocaine and that no visitors would have observed her selling cocaine. Ms. Walker testified
that her fifteen-year-old daughter was playing with a puppy on the porch and her ten-year-old
daughter was in the living room when police entered. She testified she was never handcuffed
or searched. According to Ms. Walker, the defendant had just borrowed $2,500 from his
sister. She testified that the police took him to the bedroom to assault him, that they busted
his mouth, and that his shirt was torn and bloody. Ms. Walker testified that she heard a
commotion and went to the other side of the kitchen island. The officers in the living room
were not concerned because there was no direct view into the bedroom, but Ms. Walker
could see what was happening through a floor-length mirror in the bathroom. The defendant
was handcuffed and officers were choking him and jabbing a pen down his throat. Ms.
Walker took the defendant, whose front teeth had been broken, to the dentist two or three
days later, when he was released from jail. Ms. Walker testified that Agent Holley searched
the cabinet, left to investigate the disturbance in the bedroom, returned and then “grabbed
something, pretended like he found something.” She testified he held the object close to him
rather than displaying it, as though he were trying to hide it. She was never shown any of the
drugs seized at the scene. Ms. Walker testified that the defendant was a personal drug user.
She testified she would have seen a pill bottle with cocaine in it if it were in the cabinet and

                                              -5-
that she did not see it. Ms. Walker testified that she had acquaintances who held grudges
against her for not lending them money she had recently inherited. She testified that the
defendant is five feet, seven inches tall and only weighs 130 pounds.

        While Ms. Walker did not testify during the motion to suppress, at trial she testified
that the defendant lives at her home “[a]ll the time” and “[e]very day,” that he is the father
of one of her children, and that he supports both children financially. She stated that he was
regularly involved with the children’s schooling and with family social activities. Ms.
Walker told the prosecution that where the testimony of police officers differed from hers,
they were lying. She also testified that the defendant did not claim the drugs. Instead,
officers asked him, “If we find anything, it’s yours, right?” He responded, “Whatever.” Ms.
Walker stated that she had bills from the dentist, but did not have them with her. She
testified that the jail report noted the defendant had loose teeth.

       Near the close of the defendant’s proof, the State asserted that it would call rebuttal
witnesses. The State noted that its witnesses would be “[p]robably Agent Holley and Agent
Gilbert again in light of the statements that Ms. Walker made.”

        The defense stated its intention to introduce the audio recording of the preliminary
hearing, which had not been transcribed. The State objected that the recording would
confuse the jury and that excerpts would give an incomplete picture of Agent Gilbert’s
testimony. Asked the legal basis for introducing the audio recording, the defense answered,
“It goes to credibility” and elaborated it would be a prior inconsistent statement. The trial
court asked the parties to research the admissibility of the hearing testimony, and the trial
resumed the following Monday. The defense obtained a transcript over the weekend, but
trial court ruled that the transcript was not admissible as extrinsic evidence, although it could
be used, through cross-examination, to show a prior inconsistent statement.

        After this discussion, the defense discovered that the prosecution had released Agent
Gilbert from its subpoena and that he was not present. The defense asked for a fifteen-minute
continuance to issue a subpoena. After twenty minutes, the trial court decided to continue
the trial without waiting further for Agent Gilbert, and the State proceeded with rebuttal
proof.

       Lynn Ingle, an officer with the Selmer Police Department, testified that during the
search, he remained in the living room with Ms. Walker and her daughter for the entire time.
He did not see Ms. Walker patted down. He testified that Ms. Walker got up from the couch
once, but only went “half a step” away from it before she was told to sit down.

       Ted Rogers, an Agent with the Twenty-Fifth Judicial District Drug Task Force,

                                               -6-
testified that, when he investigated an altercation in the bedroom, he saw Agent Gilbert
holding the defendant from behind, with an arm around his neck and underneath the other
shoulder, and that Agent Gilbert said that the defendant had a large quantity of narcotics in
his mouth. Agent Rogers testified that he took a pen and tried to trigger the defendant’s gag
reflex. The defendant was not handcuffed, did not gag, and had no drugs in his mouth. He
was not taken to the hospital. Agent Rogers testified he did not break any teeth and the
defendant was not bleeding. He did not recall who searched Ms. Walker.

       The defendant was convicted of simple possession of marijuana and of the lesser
included offense of facilitation of intent to deliver less than 0.5 grams of cocaine.

                               B. Post-Judgment Proceedings

        On March 5, 2010, the prosecution filed the judgment sheets with the McNairy
County clerk. On March 23, 2010, defense counsel filed an order signed on March 20, 2010
by the trial judge. The order recited the defendant’s sentence and further set bond for the
defendant. On April 19, 2010 – within thirty days of the order filed by defense counsel, but
outside the thirty-day window from the filing of the judgment sheets – the defendant filed a
motion for a new trial, alleging that the trial court erred in failing to suppress the evidence,
that the trial court erred in refusing to admit the transcript or recording of the preliminary
hearing, and that the evidence was insufficient to support the verdict. The State moved to
strike the motion as untimely, but, apparently according to local practice, the trial court found
that the thirty-day period ran from the filing of the sentencing order, and it heard the motion.
The post-conviction record reflects that the motion was denied on May 7, 2010, but defense
counsel did not, as requested by the trial court, reduce this judgment to writing or file an
order. The defense filed an untimely notice of appeal on June 14, 2010. On appeal, the State
challenged the notice of appeal and motion for a new trial as late-filed.

        The Court of Criminal Appeals found that both the motion for a new trial and the
notice of appeal were not timely filed. Woods, 2012 WL 134243, at *2. Because the defense
had not asked the appellate court to accept the late filed notice of appeal in the interest of
justice, the appeal was dismissed. Id.

       The defendant then filed a timely post-conviction petition, alleging that trial counsel
was ineffective in failing to file a timely motion for a new trial and a timely notice of appeal.
The trial court granted the defendant a delayed appeal under Tennessee Code Annotated
section 40-30-113(a)(1). Post-conviction counsel drafted the order granting the delayed
appeal, which found the defendant was “deprived of the right to an appeal by his trial
counsel’s failure to timely file a notice of appeal.” However, at the hearing the post-
conviction court also concluded that “if the Court orders a delayed appeal, which is what I’m

                                               -7-
doing, that addresses any timeliness of the motion for new trial or not. I think all that is
covered by allowing the delayed appeal.”3 The post-conviction court noted that any other
post-conviction claims were still pending.4

        In his appellate brief, the defendant raises the three issues in the original motion for
a new trial: (1) that the trial court erred in denying the motion to suppress; (2) that the trial
court erred in refusing to allow defense counsel to introduce the audio recording or transcript
of the preliminary hearing; and (3) that the evidence was insufficient to support the verdict.

                                              II. Analysis
                                    A. Sufficiency of the Evidence

        The defendant contests the sufficiency of the evidence supporting his convictions. An
appellate court must set aside a finding of guilt if the evidence at trial was insufficient to
support that finding beyond a reasonable doubt. Tenn. R. App. P. 13(e). In reviewing the
sufficiency of the evidence, the appellate court does not determine whether it believes the
evidence is sufficient to prove guilt beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 318-19 (1979). The court may not re-weigh the evidence or substitute its
inferences for those drawn by the trier of fact. State v. Hall, 8 S.W.3d 593, 599 (Tenn.
1999). Instead, the court must determine “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. On appeal, the
State is entitled to the strongest legitimate view of the evidence and to all reasonable and
legitimate inferences that may be drawn from it. Hall, 8 S.W.3d at 599. A guilty verdict
rendered by the jury and approved by the trial court accredits the testimony of the State’s
witnesses and resolves all conflicts of evidence in favor of the prosecution’s theory. State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “Questions about the credibility of 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, and this Court does not re-weigh or re-evaluate the evidence.”
State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003). In weighing the sufficiency of the


        3
         Accordingly, we conclude that the post-conviction court found that trial counsel’s failure to file a
timely motion for a new trial was both deficient and prejudicial, resulting in the ineffective assistance of
counsel, and we proceed to consider both the issues raised in the motion for a new trial and the sufficiency
of the evidence, which was not reviewed on appeal due to the failure to file a timely notice of appeal.
        4
          We note that “[i]n those situations where an appellant seeks post-conviction relief both in the form
of a new trial and a delayed appeal, we believe the better procedure is for the trial court to grant the delayed
appeal, when warranted, and dismiss the collateral attack upon the conviction without prejudice.” Gibson
v. State, 7 S.W.3d 47, 50 (Tenn. Crim. App. 1998).


                                                      -8-
evidence, circumstantial and direct evidence are treated the same, and the State is not
required to exclude every reasonable hypothesis other than that of guilt. State v. Dorantes,
331 S.W.3d 370, 381 (Tenn. 2011). A guilty verdict replaces the presumption of innocence
with a presumption of guilt. Bland, 958 S.W.2d at 659. On appeal, the defendant bears the
burden of showing that the evidence is insufficient. State v. Franklin, 308 S.W.3d 799, 825
(Tenn. 2010).

        The defendant was convicted of violating Tennessee Code Annotated sections 39-17-
417 and -418. The defendant presents no arguments that the State did not prove each element
of the two crimes; instead, the defendant argues that, had the jury been allowed to listen to
the preliminary hearing, it would have discredited Agent Gilbert and found the defendant not
guilty. As the State correctly points out, this challenge to the sufficiency of the evidence, is
not, as the defendant characterizes it, “unusual,” but simply a restatement of the defendant’s
claims that the trial court erred in excluding evidence.

        Tennessee Code Annotated section 39-17-418(a) provides that, unless prescribed by
a doctor, “[i]t is an offense for a person to knowingly possess or casually exchange a
controlled substance.” A person acts knowingly with respect to the conduct or to
circumstances surrounding the conduct “when the person is aware of the nature of the
conduct or that the circumstances exist.” T.C.A. § 39-11-302(b). Tennessee Code Annotated
section 39-17-417(a)(4) prohibits the possession of a controlled substance “with intent to
manufacture, deliver or sell the controlled substance.” A person acts intentionally when “it
is the person’s conscious objective or desire to engage in the conduct or cause the result.”
T. C. A. § 39-11-302(a). Subsection 39-17-417(c)(2)(A) makes a violation of the section a
Class C felony if the substance was cocaine and the amount was less than 0.5 grams. The
defendant was convicted of the lesser included offense of facilitation with regard to the
violation of Tennessee Code Annotated section 39-17-417(a)(4). “A person is criminally
responsible for the facilitation of a felony, if, knowing that another intends to commit a
specific felony, but without the intent required for criminal responsibility under §
39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the
felony.” T.C.A. § 39-11-403(a). “It 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.” T.C.A. § 39-11-419.

       Taken in the light most favorable to the State, the proof at trial showed that the police
received information that Ms. Walker was selling cocaine. During a search of her residence,
police found over $2,000 cash in the defendant’s pocket, including many worn bills of
smaller denomination. They found 0.4 grams of cocaine in the bedroom, in the pocket of a
jacket, and 4.2 grams of crack cocaine in a pill bottle in the kitchen. Officers also found

                                              -9-
marijuana in the kitchen and in a jacket pocket, totaling 8 grams. No drug paraphernalia
were seized. Police testified that the defendant claimed ownership the drugs. The evidence
was sufficient to allow the jury to conclude that the defendant possessed the marijuana and
that he was facilitating Ms. Walker’s sale of the 0.4 grams of cocaine. See State v. Nelson,
275 S.W.3d 851, 866-67 (Tenn. Crim. App. 2008) (concluding evidence was sufficient that
drugs were not for personal use when defendant was found with $114, no paraphernalia, and
0.5 grams of cocaine).

         B. Exclusion of Extrinsic Evidence of Prior Inconsistent Statements

        The defendant next challenges the trial court’s decision to exclude the audio recording
of the preliminary hearing and, later, the transcript of the preliminary hearing. During Agent
Gilbert’s testimony, defense counsel began to explore certain discrepancies between his
testimony at trial and his testimony at the preliminary hearing. Defense counsel questioned
Agent Gilbert thoroughly regarding his prior testimony but did not at this point seek to
introduce the audio recording of the hearing. However, after Ms. Walker’s testimony, the
defendant sought to call the court clerk to play the audio recording of the preliminary
hearing. The trial court, although it had not listened to the recording, expressed reservations
regarding the quality of the recording and possible juror confusion. The trial court asked the
parties to research the admissibility of the statements. The State represented that it would
“probably” call Agents Gilbert and Holley in rebuttal. Over the weekend, the defendant
obtained a transcript of the hearing. The trial court apparently ruled, off the record, that the
defense could cross-examine Agent Gilbert under Tennessee Rule of Evidence 613, but that
the transcript could not be entered into evidence. The State then revealed that it had decided
not to call Agent Gilbert in rebuttal and had released him from subpoena. The defense was
granted a brief continuance, during which it attempted to contact him, but was ultimately
unable to bring him back to the stand.

        Although the defendant’s argument on appeal is premised primarily on Tennessee
Rule of Evidence 804, the defense at trial sought to introduce the hearing as impeachment
evidence directed at undermining the credibility of Agent Gilbert and not as substantive
evidence. Initially, we conclude that Rule 804 does not apply to the prior testimony of Agent
Gilbert, even if the defendant’s trial argument is read to seek to introduce the statements of
the preliminary hearing for the truth of the matter asserted. While Tennessee Rules of
Evidence 801 and 802 prohibit the introduction of out-of-court statements by the declarant
offered to prove the truth of the matter asserted, Rules 803 and 804 provide exceptions to the
rule against hearsay. Under Rule 804, former testimony of a declarant who is unavailable
because the declarant “demonstrates a lack of memory of the subject matter of the declarant’s
statement” is admissible. Tenn. R. Evid. 804 (a)(3), (b)(1). A preliminary hearing transcript
is “precisely the type of former testimony contemplated” under Rule 804(b)(1). State v. Sims,

                                             -10-
No. E2006-00380-CCA-R3-CD, 2007 WL 486012, at *2 (Tenn. Crim. App. Feb. 15, 2007);
see Tenn. R. Evid. 804(b)(1), Advisory Comm’n Cmt.

        The Rule, however, requires a demonstrated lack of memory “of the subject matter
of the declarant’s statement.” Tenn. R. Evid. 804(a)(3) (emphasis added). This “means that
the witness should be called to the stand and questioned about the subject matter covered by
the witness’s own hearsay statement.” Neil P. Cohen et al., Tennessee Law of Evidence §
8.33[5] (2012) (emphasis added) (noting also that “the lack of memory is about the subject
matter of the declarant’s statement”); see also State v. Robinson, No.
M2002-02497-CCA-R3-CD, 2003 WL 22663143, at *4 (Tenn. Crim. App. Nov. 05, 2003).
Because Agent Gilbert demonstrated no lack of memory regarding the actual events of the
search but merely asserted that he did not remember what he had previously testified to, Rule
804 is not implicated.

       In its ruling excluding the extrinsic evidence but allowing further questioning, the trial
court relied on Tennessee Rule of Evidence 613(b),5 which states:

                 Extrinsic evidence of a prior inconsistent statement by a witness
                 is not admissible unless and until the witness is afforded an
                 opportunity to explain or deny the same and the opposite party
                 is afforded an opportunity to interrogate the witness thereon, or
                 the interests of justice otherwise require.

The “only requirement” is that the witness must be given an opportunity to explain or deny
the statement. Id. Advisory Comm’n Cmt. This involves: (1) confronting the witness with
the prior statement; (2) allowing the witness to explain or deny the prior statement; and (3)
allowing the opposing party to question the witness regarding the prior statement. Neil P.
Cohen et al., Tennessee Law of Evidence § 6.13 [5][a]. When a witness “unequivocally
admits” to the prior statement, extrinsic evidence may not come in. State v. Martin, 964
S.W.2d 564, 567 (Tenn. 1998). Extrinsic evidence of a prior inconsistent statement is
therefore “contingent upon whether the witness admits or denies having made the prior
inconsistent statement.” State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998). Extrinsic
evidence may come in when a witness lacks memory regarding the prior statement. State v.
Kendricks, 947 S.W.2d 875, 882 (Tenn. Crim. App. 1996). The evidence may be either the
written or the recorded content of the statement, or it may be the testimony of another
witness. State v. Reid, 164 S.W.3d 286, 313-14 (Tenn. 2005). “Rule 613(b) does not


        5
         As the State conceded at trial, the preliminary hearing testimony, if admissible as extrinsic evidence
under Tennessee Rule of Evidence 613, appears to also satisfy the hearsay exception outlined in Tennessee
Rule of Evidence 803(26).

                                                     -11-
expressly limit the impeaching party to one form of extrinsic evidence, nor does it require an
impeaching party to choose between two available forms of extrinsic evidence.” Id. at 314.

       “[I]t is well-established that trial courts have broad discretion in determining the
admissibility of evidence, and their rulings will not be reversed absent an abuse of
discretion.” State v. Stinnett, 958 S.W.2d 329, 331 (Tenn. 1997). Moreover, any error in
excluding evidence under Rule 613 is subject to harmless error analysis. Reid, 164 S.W.3d
at 314; Martin, 964 S.W.2d at 568. A judgment shall not be set aside unless, considering the
whole record, “error involving a substantial right more probably than not affected the
judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b); see
State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn. 2008).

       Here, defense counsel properly confronted Agent Gilbert with his prior statements and
gave him an opportunity to admit or deny them. When Agent Gilbert did not remember
making the statements, the mandates of Rule 613 had been satisfied. The Rule does not
require transcripts as opposed to an audio recording.6 Thus, the inconsistent testimony from
the preliminary hearing should have been admissible as extrinsic evidence.7

        We nevertheless conclude that any error did not more probably than not affect the
judgment. The defendant vigorously cross-examined Agent Gilbert regarding his prior
testimony. Agent Holley acknowledged that Agent Gilbert used a “choking” hold, and the
defendant challenged Agent Gilbert’s credibility through Ms. Walker’s testimony. Moreover,
Agent Gilbert’s trial testimony with regard to facts establishing the elements of the offenses
at issue was generally consistent with his preliminary hearing testimony. We conclude that
the credibility of Agent Gilbert was adequately explored at trial, and that the failure to
include extrinsic evidence of prior inconsistent statements did not more probably than not
affect the judgment. See Reid, 164 S.W.3d at 314.

       Insofar as the defendant objects to the fact that Agent Gilbert was not recalled to the
stand, he presents no legal argument as to why he should have been allowed a second chance
to cross-examine Agent Gilbert, and gives no insight into what additional evidence could
have been elicited on a second cross-examination. This issue is accordingly waived. See


        6
         We note that the trial court could properly have excluded the audio recording based on a finding
that poor quality rendered them confusing to the jury. However, the trial court did not listen to the recordings
or make such a finding but instead based its conclusion on the premise that a written transcript was required.
        7
        Only those portions of Agent Gilbert’s prior statements which were inconsistent with his trial
testimony would be admissible under Rule 613. State v. Ackerman, No. M2010-01979-CCA-R3-CD, 2012
WL 2870568, at *16 (Tenn. Crim. App. July 13, 2012); State v. Jackson, No. W2010-01133-CCA-R3-CD,
2012 WL 543047, at *10 (Tenn. Crim. App. Feb. 17, 2012).

                                                     -12-
Tennessee Court of Criminal Appeals Rule 10(b).

                                        C. Motion to Suppress

        The defendant also challenges the denial of his motion to suppress the evidence seized
as the result of the search of Ms. Walker’s residence. On appeal, a trial court’s findings of
fact during a motion to suppress are binding on the appellate court unless the evidence
preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Questions of
credibility, the weight and value of the evidence, and the resolution of conflicting evidence
are matters entrusted to the trial judge. Id. The prevailing party is entitled to the strongest
legitimate view of the evidence and all reasonable inferences drawn from that evidence. State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The trial court’s application of law to the facts
is reviewed de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

                                              1. Standing

       At the suppression hearing, the prosecution raised the issue of standing prior to the
introduction of any proof. The prosecution stated that the defendant did not reside at the
house, and defense counsel noted that the defendant indicated he did live there.
Nevertheless, the only witness who testified was Agent Gilbert, and he testified for the State.
Agent Gilbert testified the defendant “stayed there some, off and on, but mainly stayed in
Bolivar,” that the defendant kept some clothing “in the corner next to the bed,” that there was
only one car at the home, and that he found no mail addressed to the defendant. At the close
of the proof, the prosecution noted that “[i]f the Court finds, however, that Mr. Woods’
person should not have been searched,” then the evidence recovered from the home would
be admissible, whereas the evidence recovered from his person would not. The trial court
found that it was improper for the magistrate to consider information outside the four corners
of the documents in the warrant. Nevertheless it concluded that the defendant lacked
standing8 to challenge the search. While the charges related to the ecstasy pills recovered
from the defendant’s person were subsequently dismissed, officers testified regarding the
cash seized from the defendant’s pocket.

       The Fourth Amendment to the United States Constitution and Article I, Section 7 of
the Tennessee Constitution protect against unreasonable searches and seizures. These rights
are personal in nature. State v. Cothran, 115 S.W.3d 513, 520 (Tenn. Crim. App. 2003).


        8
         Although the defendant does not reiterate the argument he advanced at the hearing that claiming a
possessory interest in the drugs gave him standing, we nevertheless note that such an argument would fail
because possession of a seized object is no “substitute for a factual finding that the owner of the good had
a legitimate expectation of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 92 (1980).

                                                    -13-
Accordingly, the Fourth Amendment prohibition against unreasonable searches protects those
who hold a legitimate expectation of privacy – an expectation that society is prepared to
recognize as reasonable – in the place which is searched. Minnesota v. Olson, 495 U.S. 91,
95-96 (1990). The defendant must also establish a subjective expectation of privacy. State
v. Ross, 49 S.W.3d 833, 840 (Tenn. 2001). Although the letter of the Fourth Amendment
extends its protections to people in “their” houses, the United States Supreme Court has “held
that in some circumstances a person may have a legitimate expectation of privacy in the
house of someone else.” Minnesota v. Carter, 525 U.S. 83, 89 (1998). “The fact that a
person is an overnight guest in a residence or an apartment, standing alone, is sufficient to
clothe the guest with a legitimate expectation of privacy in the premises sufficient to
challenge the search and any resulting seizure.” State v. Transou, 928 S.W.2d 949, 958
(Tenn. Crim. App. 1996); see Olson, 495 U.S. at 96-97. However, “one who is merely
present with the consent of the householder” may not claim the protection of the Fourth
Amendment. Carter, 525 U.S. at 90. For instance, persons who were not social guests but
merely present in the home to conduct a business transaction, had no previous connection to
the homeowner, and were only present in the home for some hours, had no standing to
challenge an illegal search. Id. at 90-91.

        A casual visitor or transient party guest does not have a reasonable expectation of
privacy in the host’s home. Transou, 928 S.W.2d 949, 958; State v. Patterson, 966 S.W.2d
435, 441 n.5 (Tenn. Crim. App. 1997). However, this Court has noted that the conclusion
in Transou and Patterson that casual guests do not have standing is not absolute. Cothran,
115 S.W.3d at 520. Factors that a court should consider in determining whether the accused
had a reasonable expectation of privacy in the premises are: (1) property ownership; (2)
whether the defendant has a possessory interest in the thing seized; (3) whether the defendant
has a possessory interest in the place searched; (4) whether he has a right to exclude others
from that place; (5) whether he has exhibited a subjective expectation that the place would
remain free from governmental invasion; (6) whether he took normal precautions to maintain
his privacy; and (7) whether he was legitimately on the premises. State v. Oody, 823 S.W.2d
554, 560 (Tenn. Crim. App. 1991).

       Generally, testimony presented at trial may be considered in reviewing a trial court’s
ruling on a motion to suppress. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). However,
Tennessee Rule of Appellate Procedure 36(a) states that “[n]othing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of an
error.” Moreover, courts have declined to look at evidence produced at trial where the
defendant did not renew the motion to suppress in light of additional, favorable evidence.
6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.7(d) (5th
ed. 2012); see U.S. v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993) (citing cases holding that,

                                             -14-
absent plain error, the court would “not consider trial evidence which undermines a district
court decision rendered at a pretrial suppression hearing”). In State v. Patterson, when the
defendant attempted to cite to trial testimony to support his position that the trial court erred
in finding he lacked standing, this Court likewise held that “[b]ecause the motion to suppress
was handled prior to trial, evidence adduced at the subsequent trial is irrelevant to our review
of the trial court’s determination on the motion to suppress.” Patterson, 966 S.W.2d at 441.

        Here, the trial court had no opportunity to make a credibility determination between
Ms. Walker’s testimony that the defendant lived there and Agent Gilbert’s testimony that the
defendant lived mainly in Bolivar and kept limited personal effects in the home. It had no
opportunity to hear Ms. Walker’s testimony that the defendant was an integral and active part
of the immediate family unit and father or father-figure to the minor children who lived there.
Absent these factual determinations, we review solely the evidence presented at the
suppression hearing by the State – the only party who put on proof – in considering whether
the evidence preponderates against the trial court’s conclusion that the defendant lacked
standing.9

        This Court must determine whether a social guest’s ties to the host’s home raised a
reasonable expectation of privacy in the premises when determining standing to challenge
a search. When the guest’s ties are attenuated, this Court has denied standing. See State v.
Jeffries, No. W2011-02653-CCA-R3-CD, 2012 WL 3104404, at *6 -7 (Tenn. Crim. App.
July 31, 2012) (appellant who stayed at host’s home overnight but had not brought any
significant personal items, was only there to avoid law enforcement, and initiated the visit
for the purpose of drinking beer and playing cards was a “party” guest rather than an
overnight guest and failed to establish a reasonable expectation of privacy); State v. Cannon,
No. M2010-01553-CCA-R3-CD, 2012 WL 5378088, at *24 -25 (Tenn. Crim. App. Oct. 30,
2012) (defendant who had ownership interest in the property, had a sporadic romantic
relationship with the victim, and was attempting to reconcile with the victim, but who lived
in separate apartment, had no key, and was barred from contacting victim by an order of
protection had no standing); State v. Heller, No. W2007-01455-CCA-R3-CD, 2008 WL
2901581, at *8 -9 (Tenn. Crim. App. July 24, 2008) (defendant who had no ownership
interest or right to exclude others from commercial property did not have reasonable
expectation of privacy); Kyles v. State, No. W2004-00374-CCA-R3-PC, 2005 WL 645161,
at *5 (Tenn. Crim. App. Mar. 16, 2005) (concluding petitioner, who was “a passing visitor
to the residence for the purpose of consuming drugs on the premises,” did not have standing);
Patterson, 966 S.W.2d at 441 (defendants who did not show they were residents or overnight


        9
         Of course, had we concluded the defendant lacked standing, see infra, the defendant could
subsequently to this delayed direct appeal bring a post-conviction action and present proof that trial counsel
was ineffective for failing to present evidence at the suppression hearing.

                                                    -15-
guests did not have standing as casual visitors); Transou, 928 S.W.2d at 957-58 (guest who
made no effort to establish reasonable expectation of privacy at suppression hearing and who
lived at another address did not have standing).

       On the other hand, social guests with a sufficiently close tie to the home searched have
been able to challenge the legality of the search of the host’s property. See Robertson v.
State, No. M2007-01378-CCA-R3-PC, 2007 WL 277073, at *15 (Tenn. Crim. App. Feb. 5,
2009) (holding that son who was sleeping on couch and storing belongings at parents’ home
but had no key was “a regular presence” and had a reasonable expectation of privacy); State
v. Orr, No. W2001-02075-CCA-R3-CD, 2002 WL 31698697, at *2 -3 (Tenn. Crim. App.
Nov. 27, 2002) (appellant who had been staying on property for two or three weeks had
standing).

        Agent Gilbert testified that the defendant’s tie to the residence was that he “stayed”
there, alternating between Ms. Walker’s home and his main residence in Bolivar, and that the
defendant kept some clothing “in the corner next to the bed.” We conclude that Agent
Gilbert’s testimony that the defendant was a regular overnight guest and that the defendant
was keeping clothing next to the bed at the time of the search serves to establish a significant
enough connection to the household as a social guest that the defendant has established a
reasonable expectation of privacy in his host’s home. Like the son in Robertson, the
defendant was a “regular presence” in the household, and as such, has standing to challenge
the search warrant.10

                              2. Veracity of Confidential Informant

      The defendant alleges that the search warrant was not based on probable cause
because the affidavit failed to establish the veracity of the confidential informant. Under the
Aguilar-Spinelli test, when a confidential informant from the criminal milieu provides
information which is the basis for the probable cause to issue a search warrant, the affidavit
accompanying the warrant must establish: (1) the informant’s basis of knowledge and (2) the
informant’s veracity. See State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989). The affidavit
may be based on hearsay. State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998).

       An informant’s past performance in giving reliable information serves to establish
veracity. State v. Moon, 841 S.W.2d 336, 339 (Tenn. Crim. App. 1992). Because the


        10
          We note here that, although the trial court did not distinguish between the evidence seized in the
home and the cash seized from the defendant’s person, “[o]ne does have a reasonable expectation of privacy
on his or her person.” Cothran, 115 S.W.3d at 521. Accordingly, the defendant had standing to challenge
the seizure of any items from his person.

                                                   -16-
magistrate must “make a judicial determination, that is, a neutral and detached judgment, that
probable cause is shown,” the statements in the affidavit cannot be conclusory but must
include the specific underlying circumstances indicating reliability. Moon, 841 S.W.2d at
338. The affiant must provide the magistrate with a concrete reason to trust in the
informant’s credibility. State v. Sales, 393 S.W.3d 236, 240 (Tenn. Crim. App. 2012). It is
essential that the magistrate have enough information to “make an independent determination
regarding the informant’s credibility.” Moon, 841 S.W.2d at 339. Independent police
corroboration may make up for a deficiency in either prong. State v. Powell, 53 S.W.3d 258,
263 (Tenn. Crim. App. 2000).

       “[P]robable cause to support the issuance of the warrant must appear in the affidavit
and judicial review of the existence of probable cause will not include looking to other
evidence provided to or known by the issuing magistrate or possessed by the affiant.” Moon,
841 S.W.2d at 338. Accordingly, this Court may not consider the testimony of Agent Gilbert
that the informant had given information that led to past convictions or any information
which Agent Gilbert gave the magistrate outside the affidavit itself.

       The statement in the affidavit that the informant, who was familiar with the appearnce
of drugs, had seen cocaine on the premises in the previous seventy-two hours satisfies the
basis of knowledge prong of the test. See Moon, 841 S.W.2d at 339.

        The defendant, however, alleges that the informant’s veracity was not established in
the affidavit. The Tennessee Supreme Court, in State v. Valentine, held that a statement that
the informant was “a reputable and reliable person” was conclusory and did not satisfy the
veracity prong of the Aguilar-Spinelli test. State v. Valentine, 911 S.W.2d 328, 330 (Tenn.
1995). Likewise, an assertion that the informant was “believed to be credible and [re]liable”
could not, without police corroboration, establish the informant’s veracity. State v. Stevens,
989 S.W.2d 290, 295 (Tenn. 1999). While “The requisite volume or detail of information
needed to establish the informant’s credibility is not particularly great,” the magistrate must
have “specific corroborating information” of the informant’s reliability. State v. Lowe, 949
S.W.2d 300, 306 (Tenn. Crim. App. 1996).

        A statement in an affidavit that the informant’s past information has led to convictions
is clearly sufficient. Id. at 305-06; State v. Batts, No. W2006-00419-CCA-R3-CD, 2007 WL
1015444, at *9 (Tenn. Crim. App. Apr. 4, 2007) (the affiant’s declaration that the informant
had previously provided information resulting in the recovery of illegal narcotics, arrests, and
convictions was adequate). So is a statement that the informant’s tips have led to the seizure
of specific evidence. Sales, 393 S.W.3d at 240 -241 (affidavit which stated that informant’s
tips had led to several drug seizures and arrests was adequate); Logan v. State, No.
03C01-9808-CR-00287, 1999 WL 1018187, at *11-12 (Tenn. Crim. App. Nov. 10, 1999)

                                              -17-
(statement that the informant had “given the affiant information on at least one occasion that
led to the seizure of cocaine,” had never given false information, and had corroborated other
informants’ tips was sufficient to establish veracity); State v. Snipes, No. W2004-01619-
CCA-R3-CD, 2005 WL 1105187, at *4 (Tenn. Crim. App. May 5, 2005) (statement that past
information had led to narcotics arrests and seizure of drugs was sufficient). An arrest only,
on the other hand, is not “necessarily indicative of reliability.” Lowe, 949 S.W.2d at 305 ;
see Henning, 975 S.W.2d at 295 (statement that informant’s reliable past information had led
to arrests needed corroboration).

        In the case at bar, the affidavit averred that the informant had “provided Reliable &
Credible information in the past concerning crack cocaine and the trafficking of crack
cocaine.” While the statement that described the informant as a “confidential source who has
furnished reliable information in the past” was upheld as sufficient in State v. Bush, 626
S.W.2d 470, 475-76 (Tenn. Crim. App. 1981), more recent opinions have concluded that
“[a]llegations that an informant’s prior information was ‘valid’ or ‘correct’ [are] conclusory
and not indicative of information reliability.” State v. Udzinski, No. 01C01-9212-CC-00380,
1993 WL 473308, at *3 (Tenn. Crim. App. Nov. 18, 1993). Compare State v. Wright, No.
01C01-9510-CC-00326, 1997 WL 13729, at *5 (Tenn. Crim. App. Jan. 16, 1997) (statement
that “there has been a previous occasion, or occasions, on which the same informer has given
information of violation of law of the state, which information thereafter was found to have
been accurate and reliable” was not conclusory) with State v. Morales, No. E2001-01768-
CCA-R3-CD, 2003 WL 21297308, at *5 (Tenn. Crim. App. June 5, 2003) (statement that
“[a]ll information received from this source has all proven to be true through past drug
investigations” was conclusory and lacked independent indicia of its validity); Powell, 53
S.W.3d at 263 (concluding that statement that the informant had proven to be reliable by
providing information about drug trafficking which had been corroborated by independent
investigations was “somewhat conclusory” but independent corroboration made up for any
deficiency); Transou, 928 S.W.2d at 957 (statement that information came from “reliable
informant who has proven reliable in the past” was insufficient to establish veracity);
Udzinski, 1993 WL 473308, at *3 (statement that “informant is a reliable person who has
provided information to this officer in the past which has all proven to be correct” was
inadequate to show veracity); State v. Gaw, No. 01C01-9410-CC-00351, 1995 WL 626616,
at *3 (Tenn. Crim. App. Oct. 26, 1995) (affidavit that the informant had provided accurate
and reliable information in the past was not sufficient to establish veracity); State v. Simpson,
No. 02C01-9508-CC-00240, 1996 WL 551796, at *8-9 (Tenn. Crim. App. Sept. 30, 1996)
(veracity was not established by a statement that the information came from responsible and
reliable citizen who had provided reliable information before).

       Our conclusion is that the statement that the informant had previously provided
credible and reliable information regarding drug trafficking was simply not specific enough

                                              -18-
for the magistrate to make an independent decision regarding the informant’s veracity. The
magistrate could be nothing other than the proverbial rubber stamp. See Moon, 841 S.W.2d
at 338. Accordingly, the warrant was not supported by probable cause, and the evidence
should have been suppressed.

       Constitutional errors that are not structural do not require automatic reversal.
“However, the burden on the State to demonstrate that a non-structural constitutional error
is harmless remains quite stringent. The existence of a non-structural constitutional error
requires reversal unless the State demonstrates beyond a reasonable doubt that the error is
harmless.” Rodriguez, 254 S.W.3d at 371. Because the seizure of the drugs and cash were
the entirety the prosecution’s case, we cannot conclude that the error was harmless.

                                       Conclusion

       Based on the foregoing reasoning, we conclude the trial court erred in denying the
motion to suppress the evidence. Accordingly, the defendant’s convictions are reversed and
the case is remanded for dismissal of the charges.




                                                  _________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




                                           -19-
