         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 13, 2000

  STATE OF TENNESSEE v. WILLIAM WASHINGTON a/k/a “Freddie”

               Direct Appeal from the Criminal Court for Washington County
                           No. 25245B    Robert E. Cupp, Judge



                                  No. E2000-00695-CCA-R3-CD
                                        February 6, 2001

William Washington was found guilty by a Washington County jury of one count of possession of
less than one-half gram of cocaine with intent to sell. Washington, a range III offender, was
sentenced to twelve years in the Department of Correction. The following issues are presented on
appeal: (1) the sufficiency of the convicting evidence and (2) whether the trial court impermissibly
limited the scope of his voir dire examination of prospective jurors with regard to racial bias.
Finding no error, the judgment is affirmed.

               Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
NORMA MCGEE OGLE , JJ., joined.

Scott Pratt, Johnson City, Tennessee, for the Appellant, William Washington a/k/a "Freddie."

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark A. Fulks,
Assistant Attorney General, Joe C. Crumley, Jr., District Attorney General, and Steve Finney,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION


        The Appellant, William Washington a/k/a "Freddie," appeals his jury conviction for one
count of sale of cocaine less than one-half gram. The Washington County Criminal Court sentenced
the Appellant as a range III offender to twelve years in the Department of Correction. The Appellant
now contends that (1) the evidence is insufficient to support his conviction for the sale of cocaine
and (2) the trial court erroneously limited defense counsel's voir dire of prospective jurors with
regard to racial bias.

       After review, we affirm.
                                                        Background

        In January of 1999, Larry Woodby assisted the First Judicial District Drug Task Force as a
paid confidential informant in the surveillance and purchase of drugs in Washington County. 1 On
January 20, 1999, Woodby contacted Drug Task Force Agents Walker and Robbins and advised
them of drug activity at “Big G’s”2 in Johnson City. The agents arranged to meet Woodby at a
parking garage. At the garage, the agents fitted Woodby with a radio transmitter to record the drug
transaction and supplied him with $100 of marked money. Before Woodby left the garage, the
agents searched Woodby’s vehicle and his person for the presence of guns or drugs. After being
cleared by the officers, Woodby proceeded to “Big G’s.”

        At “Big G’s,” Woodby met the Appellant and Thelma “Squawky” Garland. After a brief
conversation, the subject of crack cocaine arose, followed by Woodby’s request for “a hundred
dollars worth.” The Appellant and Garland instructed Woodby to follow them “around back,” where
they “got in [Woodby’s] vehicle [and] drove up to the top of Belmont . . . Then we walked over [to]
where Mr. Jackson[3] was standing. . . .[The Appellant and Jackson] exchanged money and
everything, then a few moments later he c[a]me back and got in the car and we left.”

        Once in Woodby’s vehicle, the Appellant turned to Woodby, remarked, “Here’s what you
want,” and handed Woodby three rocks of crack cocaine. Woodby replied, “Man, that’s short.”4 The
Appellant explained that “[the three rocks were] [pretty big] so you got a good deal.” Woodby
admitted that the three rocks of crack cocaine were “bigger than what is usually seen on Wilson
Avenue.” Shortly after the transaction, Garland asked Woodby for a “crumb.” Woodby informed the
Appellant and Garland that the drugs were for his brother and that he could not share with them.
Woodby then drove the Appellant and Garland to a residence on Pine Street. He then returned to
the parking garage where he met the agents and turned over the contraband. Subsequent laboratory
testing by the Tennessee Bureau of Investigation confirmed that the substance delivered by the
Appellant to Woodby was cocaine with a weight of .2 grams.

       Based upon this proof, the jury found the Appellant guilty of possession of less than one-half
gram of cocaine with intent to sell.




         1
            The proof established th at Woo dby’s participation with the Drug Task Force over a period of months resulted
in at least two hundred pending cases. During this period, Woodby, a convicted felon, was also under indictment for
drug charges.

         2
             “Big G’s” is never identified in the record and it is unclear whether it is a business, residence or an area of the
town.

         3
             Kenneth “Ho ney” Jackson was indicted as a co-defendant on these charges.

         4
           Woodby later explained that, usually, he would receive four or five rocks of crack cocaine for a hundred
dollars, instead of the three give n to him by the A ppellant.

                                                               -2-
                                              Sufficiency of the Evidence

        The Appellant first contends that the evidence is insufficient as a matter of law to sustain his
conviction for possession of less than one-half gram of cocaine with intent to sell. To convict a
defendant for the sale of cocaine, the State must prove that the defendant knowingly sold a controlled
substance. See TENN. CODE. ANN . § 39-17-417(a)(3) (Supp. 1999). The Appellant does not dispute
that the substance transferred from Jackson to Woodby was, indeed, less than one-half gram of
cocaine. Nor does he contend that his actions were unknowing. However, the Appellant argues that,
under the authority of State v. Baldwin, 867 S.W.2d 358 (Tenn. Crim. App. 1993), superseded by
statute as stated in, State v. Porter, 2 S.W.3d 190 (Tenn. 1999), he, as the “procurer” of the cocaine,
may only be convicted of simple possession and not the greater offense of possession with intent to
sell. Specifically, he contends that the facts in the present case fail to establish that he shared the
criminal intent of the “seller,” Jackson.

        In State v. Baldwin, 867 S.W.2d at 359-360, this court modified the defendant’s conviction
for selling cocaine to one for simple possession, utilizing the rationale of the procuring agent
defense. Initially, we note that the commission of the offense in Baldwin predated the Criminal
Reform Act of 1989. Decisions of this court subsequent to the enactment of the 1989 Act have
consistently held that “even though the defendant served only as the ‘procuring agent,’ he remained,
pursuant to TENN. CODE ANN . § 39-11-402, criminally responsible for the sale of cocaine to the same
extent as the individual who actually provided the substance.” See State v. Albert Dewaynn Porter,
No. 02C01-9501-CC-00029 (Tenn. Crim. App. at Jackson, Jul. 16, 1997), aff’d by, 2 S.W.3d 190
(Tenn. 1999) (holding that the “procuring agent” defense was abolished in toto by the enactment of
the Criminal Reform Act of 1989) (citing State v. Jack Greenwood, No. 01C01-9109-CR-00280
(Tenn. Crim. App. at Nashville, Mar.19, 1992)). Cf. State v. Phil Wilkerson, No. 03C01-9708-CR-
00336 (Tenn. Crim. App. at Knoxville, Jul. 9, 1998) (definition of “sale” applied to defendant who
delivered the property for which he had accepted payment); State v. Michael Wayne Henry, No.
02C01-9611-CC-00382 (Tenn. Crim. App. at Jackson, May 29, 1997), perm. to appeal denied,
(Tenn. Mar. 2, 1998) (same). To establish criminal responsibility for the conduct of another, the State
must prove that the defendant, "acting with the intent to promote or assist the commission of the
offense, or to benefit in the proceeds or result of the offense, . . . solicit[ed], direct[ed], aid[ed] or
attempt[ed] to aid another person to commit the offense."5 TENN. CODE ANN . § 39-11-402(2)
(1997). In the present case, Woodby, the confidential informant, approached the Appellant seeking
to purchase crack cocaine. The Appellant took Woodby to a particular area where drugs could be
purchased. The Appellant accepted $100 cash from Woodby and exchanged it with Jackson for three
rocks of crack cocaine. The Appellant then gave the crack cocaine to Woodby who inspected and
agreed to purchase the rocks. This factual scenario supports the conclusion that the Appellant is
criminally responsible for the sale. See, e.g., State v. Albert Dewaynn Porter, No. 02C01-9501-CC-
00029 (defendant directed undercover officer and informant to apartment complex where sale would
take place; defendant accepted $250 cash from officer and went to another apartment where he
exchanged money for 8-ball of cocaine; these facts establish that defendant was criminally


        5
            In the presen t case, the trial cou rt instructed the ju ry as to the theo ry of criminal res ponsibility.

                                                                -3-
responsible for the sale); State v. Jack Greenwood, No. 01C01-9109-CR-00280 (on several
occasions, undercover officer gave defendant $100; defendant left and returned later with cocaine;
these facts establish that defendant was criminally responsible for the sale). Accordingly, the
evidence is more than sufficient to support the Appellant’s conviction. See Jackson v. Virginia, 443
U.S. 307, 317, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert.
denied, 513 U.S. 1086, 115 S. Ct. 743 (1995); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert.
denied, 507 U.S. 954, 113 S. Ct. 1368 (1993); Tenn. R. App. P. 13(e). This issue is without merit.


                                      Restriction of Voir Dire

        In his final issue, the Appellant contends that the trial court erroneously restricted defense
counsel’s voir dire of prospective jurors with regard to racial bias. Specifically, he asserts that the
court’s actions prevented the effective interrogation of prospective jurors which resulted in counsel’s
inability to effectively exercise his peremptory challenges. The Appellant identifies in his brief, as
evidence of the trial court’s “strict limitation on the inquiry” of racial bias, the following voir dire
examination of prospective jurors by the court:

        Folks, I want to ask you just a couple of follow-up questions based upon that. This
        is the year 2000. If we had prejudices, they should have been gone years ago. And
        I’m going to ask you all a simple question. The fact that these two defendants are
        black, does that - - do you feel that you can’t sit and give these two defendants a fair
        trial? Do you have to - - do we even have to mention color this day and time? Do
        you - - do you have to look over there and say that there’s a black person over there,
        and simply because there’s a black person over there, I can’t treat that black person
        like I can anyone else? Is there anyone that feels that way this day and time? If you
        do, just raise your hand.

This voir dire was immediately preceded by counsel’s unartful attempt to examine the prospective
jurors in the following manner:

        The first things I’d like for all of you to do is look around the room. I mean really
        look around the room. That man right there is scared. Let me tell you why. He’s
        black. Look around. Everybody except for you and you is white.

Objections immediately followed. A bench conference was held with the trial court instructing
counsel that, “You’re not asking the question properly.” Counsel was advised that he could rephrase
the questions and that inquiry of racial bias could continue. With this instruction, counsel then
inquired of the prospective jurors:

        How would you feel sitting in - - and I’m not saying anybody here is a racist, but how
        would you feel sitting in that chair looking back through here and seeing what they
        see?


                                                  -4-
Again, the prosecution objected and another bench conference was held, resulting in similar
instructions from the trial court and admonitions to trial counsel. Nonetheless, the same general
form of inquiry persisted and it was only at this point that the trial court intervened by examining the
prospective jurors in the manner which is now being challenged by the Appellant.

         The ultimate goal of voir dire is to insure that jurors are competent, unbiased, and impartial.
State v. Mann, 959 S.W.2d 503, 533 (Tenn. 1997), reh’g denied, (1998), cert. denied, 524 U.S. 956,
118 S. Ct. 2376 (1998); Cazes, 875 S.W.2d at 262. In Tennessee, the trial court has wide latitude
in the examination of prospective jurors.6 This includes the court’s questioning of potential jurors
regarding their qualifications to serve as jurors and “the court’s supervision of questioning by the
respective parties for the purpose of discovering bases for challenge for cause and enabling an
intelligent exercise of peremptory challenges.” See Tenn. R. Crim. P. 24(a). The actions of the
trial court in this regard will not be disturbed unless there is an abuse of the court’s discretion. State
v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988), cert. denied, 489 U.S. 1072, 109 S. Ct. 1357 (1989);
State v. Black, 618 S.W.2d 526, 527 (Tenn. Crim. App. 1981).

         Our examination of the record leads us to the conclusion that the trial court’s action did not
impermissibly intrude upon the scope of appellant’s voir dire examination of prospective jurors. The
Advisory Commission Comments to Rule 24, Tenn. R. Crim. P., provide: “The Commission
disapproves of questions tending to lead the prospective juror or suggest partiality in the first
instance. . . .” Additionally, although the court prohibited counsel’s manner of questioning on
several occasions, the court, in its own examination of the prospective jurors, inquired as to any
possible bias or prejudice the prospective jurors might have based on the Appellant’s race. Contrary
to the inferences raised by the Appellant’s argument, there is no constitutional right that a defendant
is entitled to have questions posed to the venire specifically directed to matters that conceivably
might prejudice venire men against him. See Ross, 424 U.S. at 594, 96 S. Ct. at 1020 (citing Ham
v. South Carolina, 409 U.S. 524, 527-28, 93 S. Ct. 848, 850 (1973)). Specific questioning as to
racial bias is only necessary where the particular circumstances of the case require. See Ross, 424
U.S. at 596, 96 S. Ct. at 1021;7 Ham, 409 U.S. at 527, 93 S. Ct. at 850; see also Black, 618 S.W.2d


         6
           This is so because “t he determ ination of imp artiality, in which dem eanor pla ys such an imp ortant part, is
particularly within the province of the trial judge.” Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 1020 (1976)
(citing Rideau v. Louisiana, 373 U.S. 723, 733, 83 S. Ct. 1417, 14 23 (1963) (Clark, J., dissenting)).

         7
          The Court in Ross specifically rejected a per se rule regardin g juror que stioning on ra cial prejud ice. Ross, 424
U.S. at 596, 96 S. Ct. at 1021, n. 8. In doing so, the Court stated:
                  W e note that such a per se rule could n ot, in principle, be limited to cases involving
                  possible racial prejudice. It would apply with equal force whenever voir dire
                  questioning about ethnic origins was sought, and its logic could enc ompass
                  questions concerning o ther factors, such as religious affiliation or national origin.
                  In our heterogen eous socie ty policy as well as constitutional co nsiderations militate
                  against the divisive assumption – as a per se rule – that justice in a court of law may
                  turn upon the pigmentation of skin, the accident of birth, or the choice of religion.

                                                                                                               (continued ...)

                                                             -5-
at 528. The present case is absent any facts which would lead this court to conclude that specific
questioning is required.

         From the facts before this court, we cannot conclude that the Appellant’s trial was
“fundamentally unfair.” Each of the jurors ultimately impaneled made unqualified assertions that
they could be fair and impartial. The transcript before this court does not demonstrate any
fundamental unfairness in the conduct of the trial. Indeed, “where a juror is not legally disqualified
or there is no inherent prejudice, the burden is on the [d]efendant to show that a juror is in some way
biased or prejudiced.” State v. Caughron, 855 S.W.2d 526, 539 (Tenn.), cert. denied, 510 U.S. 979,
114 S. Ct. 475 (1993). In the present case, the Appellant has failed to establish that he was not
provided a trial cloaked with guarantees of fundamental fairness. Nor has the Appellant established
the racial bias of any of the jurors ultimately impaneled. Accordingly, not only do we conclude that
the trial court did not abuse its discretion, but also we find that the Appellant has not established that
the trial court’s restriction unduly impacted defense counsel’s ability to effectively exercise
peremptory challenges. This issue is without merit.

         For these reasons, the judgment of conviction is affirmed.




                                                                 ___________________________________
                                                                 DAVID G. HAYES, JUDGE




         7
         (...continued)
Ross, 424 U.S. at 596, 96 S. Ct. at 1021, n.8 (internal citations omitted).

                                                           -6-
