            IN T H E C O U R T O F C R IM I N A L A P PE A L S O F T E N N E S S E E
                                      A T JA C K SO N

            S T A T E O F T E N N E S SE E v . M A R L O N D . B E A U R E G A R D

               D irect A ppeal from th e C ircuit C ourt for Ha rdeman C ounty
                          N o. 2704 67    K er ry B lac kw ood , J ud ge




                   N o. W 1999-01496-C C A -R 3-C D - D ecid ed M ay 26, 2000




         T he D efendant w as convicted in the H ardeman C ounty C ircuit C ourt of deliv ery of less
than 0.5 grams of cocaine, and he appealed. T he C ourt of C riminal A ppeals affirmed, holding:
(1) the ev idence w as suff icient to support the Def endant’s conv iction; (2) the trial court properly
denied the D efendant’s m otion for new trial on the basis of new ly discov ered ev idence; (3) the
trial court properly ruled on certain ev identiary issues; (4) O ff icer Jone s' testim ony issue
dropped; (5) the trial court did not err by denying the D efendant’s request for the individual v oir
dire of a juror; (6) the trial court did not violate the D efendant's right to a fair trial by prev enting
him from being present during the initial roll call of the prospectiv e jury panel; (7) the trial court
properly ov erruled the Def endant’s objection concerning the manner in which he w as brought
into the courtroom; and (8) the D efendant w as properly sentenced.


T enn. R . A pp. P. 3 A ppeal as of R ight; Judgm ent of the Trial C ourt Af firmed.

W E L L E S , J., deliv ered the opinion of the court, in which L A F F E R T Y , S R . J ., join ed. T IP T O N , J .,
filed a concurring opinion.

Jeannie K aess, Boliv ar, T ennessee, for the appellant, M arlon D . Beauregard.


Paul G . S umm ers, A ttorney G eneral and Reporter, R . S tephen Jobe, A ssistant A ttorney G eneral,
E lizabeth R ic e, D is tri ct A tt orn ey G en eral, an d J erry N orw oo d, A ss is ta nt D is tri ct A tt orn ey
G eneral, for the appellee, State of T ennessee.


                                                    O PIN IO N

       In January 1998, the Hardeman C ounty G rand Jury indicted the D efendant, M arlon D .
B eauregard, for the deliv ery of less than 0.5 grams of cocaine. The D efendant and his co-
defendant, R oderick Polk, w ere tried together before a H ardeman C ounty jury, and the jury found
both defendants guilty . A fter a sentencing hearing, the trial judge sentenced the D efendant as
a R ange I standard offender to six y ears imprisonment. Pursuant to R ule 3 of the T ennessee
R ules of A ppellate Procedure, the Defendant now appeals.

        T he D efendant presents the follow ing issues for our review : (1) w hether suff icient
ev idence w as presented to support his conv iction; (2) w hether the trial court erred by deny ing
his motion for new trial based on newly discov ered ev idence; (3) w hether the trial court erred
by allow ing im proper hearsay statements from co-defendant Polk; (4) w hether the trial court
erred by deny ing his motion for mistrial concerning testimony by O ff icer K enneth Jones that the
D efendant “w as already i ncarcerated”; (5) w hether the trial court erred by deny ing his request
for the indiv idual v oir dire of one of the jurors; (6) w hether the trial court erred by prev enting
him from being present in the courtroom at the beginning of v oir dire; (7) w hether the trial court
erred by ov erruling the D efendant’s objection regarding the manner in w hich he was brought into
the courtroom during trial; and (8) w hether the D efendant w as improperly sentenced.

          T he charges in this case stem f rom a controlled drug purchase made as part of an
undercover sting operation in B oliv ar, T ennessee. O n A ugust 5, 1997, the day in question,
O ff icer K enneth Jones posed as a “crack head” to purchase drugs. A s part of his disguise, he w as
furnished w ith an undercover police v ehicle, which w as equipped w ith both a v ideo camera and
an audio recording sy stem. J ones testified at trial that w hile he w as “riding around in B oliv ar,”
he encountered co-defendant Polk at an intersection. He asked Polk if he knew w here he might
purchase “[c]rack [c]ocaine,” and Polk responded that he could “take [Jones] to where he could
buy it.” Polk e ntered the v ehicle which J ones was driv ing and sat in the passenger seat of the
car.

           Jones stated that he and Polk “rode dow n a few blocks and discussed w here [they] w ere
going to purchase” the cocaine. T hey m ade two or three stops and attempted unsuccessfully to
buy cocaine. They then drov e to M artin Luther K ing D rive, w here they encountered a ma n
remov ing a laundry bask et f rom a car. Jones identified this m an as the Def endant. A ccording
to Jones, Polk asked the D efendant if he could “do 50, which is 50 dollars w orth of [c]rack,” and
the D efendant “told [Polk] to get out of the v ehicle and for [Jones] to ‘make the block.’ ” Jones
gav e Polk f ifty dollars and drov e aw ay. W hen he returned, Polk reentered the car and handed
Jones three “rocks” of crack cocaine. Then, at Polk’s request, Jones gav e Polk a portion of one
of the rocks. F ollow ing the transaction, Jones placed the narcotics in the glov e compartment box
o f th e c ar f o r s af e ke ep in g .

        M ichael Jones, a N arcotics Investigator w ith the Boliv ar Police Department, testified that
he w orked w ith K enneth Jones in the undercov er sting operation. H e stated that he met with
K enneth Jones prior to the transaction on A ugust 5, 1997, gav e him m oney f or the “buy,” and
then “stay[ed] close” to him during the transaction for safety reasons. M ichael Jones testif ied
that he later collected the narcotics from the glov e compartment box. H e stated that he placed
the narcotics in an env elope and deliv ered the envelope to the T ennessee B ureau of Inv estigation
C rime L aboratory for analysis.


                                                 -2-
        K ay S herrif f, a forensic scientist at the T B I C rime L ab, testified that she received and
tested the substance w hich w as deliv ered by O ff icer M ichael Jones. S he identified the substance
as “[c]ocaine [b]ase,” a Schedule II drug, and stated that it w eighed 0.3 grams. S he reported that
there w ere three rock s of coca ine i n the env elop e.

         K enneth Jones also introduced a video and audio tape of the transaction at trial. On the
tape, Jones described the D efendant as follow s: “light skinned guy w ith blue M agic shirt, hair
cut real short, approximately 5'11", 165, 170 pounds.” K enneth Jones later identified
photographs of both defendants from a photo line-up. To counter K enneth Jones’ initial
description of the D efendant, the defense introduced the testimony of L oraine G raham, an L .P .N .
w ho had treated the D efendant for headaches on D ecember 10, 1997, some fiv e months before
the trial. S he stated that she weighed and measured the Def endant as part of her routine patient
assessment. G raham stated that at the time she treated the D efendant, he w eighed 142 pounds.
S he also reported that he was f iv e feet, six and a half inches tall w ithout shoes and fiv e feet,
sev en and a half inches with shoes.

        O n cross-exam ination, K enneth Jones w as questioned about his identification of the
D efendant. H e admitted that in his w ritten report, he described the Def endant as being
approxim ately fiv e feet, ten inches tall. H ow ev er, he insisted that he got a “v ery good look” at
the D efendant and that there w as “absolutely no doubt in [his] mind” that he had identified both
defendants correctly. K enneth Jones further admitted that he drank beer w hile w orking
undercover. H e reported that on the date of the transaction in question, he consumed less than
one half of a thirty-tw o ounce bottle of beer, but he maintained that he w as not impaired by the
alcohol he consumed. M ichael Jones v erified K enneth Jones’ claim that he w as not intoxicated
on A ug ust 5 , 1997 .

                             I. S U F F IC I EN C Y O F T H E E V I D E N C E

       T he D efendant f irst argues that the evidence presented at trial is insufficient to support
his conv iction. He contends that the evidence did not sufficiently establish his identity as the
person w ho so ld th e coc aine to O ff icer J ones . A lternativ ely, he argues that the State failed to
prove that he actually deliv ered the cocaine to Roderick Polk.

         T ennessee R ule of A ppellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is insuff icient
to support the findings by the trier of fact of guilt bey ond a reasonable doubt.” Tenn. R . A pp.
P . 13(e). In addition, because conv iction by a trier of f act destroys the presumption of innocence
and imposes a presumption of guilt, a conv icted criminal defendant bears the burden of show ing
that the ev idence w as insu ff icie nt. S ee M cB ee v . State , 372 S.W .2d 173, 176 (T enn. 1963); see
also S tate v. E v ans, 838 S .W .2d 185, 191 (T enn. 1992) (citing S tate v . G race, 493 S.W .2d 474,
476 (T enn. 1976), and S tate v. B rown, 551 S.W .2d 329, 331 (T enn. 1977)); S tate v . T uggle , 639
S .W .2d 913, 914 (T enn. 1982); H olt v . State , 357 S.W .2d 57, 61 (T enn. 1962).



                                                   -3-
         In its review of the ev idence, an appellate court must aff ord the S tate “the strongest
legitimate v iew of the evidence as w ell as all reasonable and legitimate inferences that may be
drawn theref rom.” T uggle , 639 S.W .2d at 914 (citing S tate v . C abbage, 571 S.W .2d 832, 835
(T enn. 1978)). The court may not “re-w eigh or re-evaluate the ev idence” in the record below.
E v ans, 838 S .W .2d at 191 (citing C a bb ag e, 571 S .W .2d at 836). L ikew ise, should the rev iew ing
court find particular conflicts in the trial testimony , the court must resolve them in fav or of the
jury v erdict or trial co urt jud gm ent. S ee T uggle , 639 S.W .2d at 914.

        T he D efendant first contends that he w as incorre ctly identif ied as the person w ho sold
cocaine to O ff icer Jones. In support of this contention, he points to discrepancies betw een
K enneth Jones’ description of him and m easu reme nts t aken by nurse L oraine G raham . H e also
com plai ns th at K enne th J ones did n ot id enti fy any spec if ic f acia l cha racterist ics.

         “T he question of appellant's identity as the person w ho committed the of fense [is] for the
jury's determination, upon consideration of all the com petent proof.” S tate v . S helley , 628
S .W .2d 436, 438 (T enn. C rim. A pp. 1981). Here, the jury w as presented with testim ony by
O ff icer K enneth Jones that he “got a v ery good look” at the man w ho told him to “make the
bloc k.” Jones also testif ied that he w as absolutely sure that the Def endant w as the man he had
seen. H av ing heard all of the ev idence, the jury concluded that the D efendant w as the man
w hom J ones saw. W e w ill not disturb this finding of fact on appeal.

        T he D efendant nex t argues that insufficient ev idence was presented to support the jury’ s
finding that he actually deliv ered the cocaine to K enneth Jones. He states, “T he only contact the
man had w ith R oderick Polk w as to tell K enneth Jones to drive around the block. . . . K enneth
Jones [did] not see w ho deliv ered the cocaine to Roderick Polk. W hen K enneth Jones picked
up R oderic k P olk, t here w ere oth er me n in t he area.”

         T o establish the off ense in this case, the State w as required to prove that the Def endant
know ingly deli v ered a co ntroll ed su bsta nce. S ee T enn. C ode A nn. § 39-17-417(a)(2).
“‘D eliv ery’ means the actual, constructiv e, or attempted transfer from one person to another of
a controlled substance, w hether or not there is an agency relationship . . . .” Id. § 39-17-402(6).
H ere, K enneth Jones testif ied that he and Polk approached the D ef endant, and Polk asked the
D efendant w heth er he cou ld “d o 50.” T he D efendant instructed Jones to “make the block” w hile
Polk accom pani ed th e D ef enda nt. J ones ga v e P olk f if ty doll ars. W hen J ones returned, P olk
reentered Jones’ v ehicle w ith possession of three rocks of cocaine. Polk gav e the cocaine to
Jones. V iew ing this ev idence in light m ost fav orable to the State , see T uggle , 639 S .W .2d at
914, w e conclude that suff icient evidence w as presented from w hich the jury coul d hav e
determined beyond a reasonable doubt that the D efendant deliv ered the cocaine to K enneth
Jones.




                                                   -4-
                               II. N E W L Y D IS C O V E R E D E V ID E N C E

         T he D efendant next argues that the trial court erred by deny ing his motion f or new trial
based on new ly discov ered evidence. F ollow ing trial, the D efendant submitted aff idav its from
diff erent indiv iduals w ho stated that they had ov erheard R oderick Polk say ing he did not obtain
the cocaine from the Def endant. The D efendant contends that this evidence w as material and
w ould likely hav e changed the result of the trial.

          A n ac cu se d s ee ki ng a new trial on the basis of new ly discov ered evidence must f ile an
aff idav it
          setting forth the facts showing that he and his counsel exercised reasonable
          diligence and w ere not negligent in the search for evidence in preparation for the
          trial of the case, that he and his counsel had no pre-trial know ledge of the
          alleged ly new ly discov ered ev idence, and it must be supported by the af fid av it
          of the new w itness showing materiality of the testim ony and that it had not been
          comm unicated to the accused prior to trial.

Jones v . State, 452 S .W .2d 365, 367 (T enn. C rim. A pp. 1970). “In seeking a new trial based on
new ly discovered ev idence, the defendant must establish (1) reasonable diligence in attempting
to discover the ev idence; (2) the materiality of the ev idence; and (3) that the ev idence would
likely change the result of the trial.” S tate v. M eade, 942 S .W .2d 561, 565-66 (T enn. C rim. A pp.
1996).

        “T he decision to grant or deny a new trial on the basis of new ly discov ered ev idence is
a matter w hich rests w ithin the sound discretion of the trial court.” S tate v . G osw ick, 656
S .W .2d 35 5, 35 8 (T en n. 19 83 ). T hu s, ou r st an da rd of rev iew is ab use o f d iscret ion. S ee M eade,
942 S .W .2d at 565. M oreover, the trial court may determine the credibility of any new ly
discov ered ev id en ce , an d i f th e cou rt concludes that the ev idence would not be w orthy of belief
by the jury , the c ourt sh ould deny the m otio n f or new trial. S ee E v ans v . S tate, 557 S.W .2d 927,
938 (T enn. C rim. A pp. 1977).

         In this case, the Def endant has submitted aff idav its from three sources: (1) co-defendant
R oderick Polk, w ho himself w as convicted in this case; (2) tw o inmates w ho claimed to hav e
ov erheard Polk say that he did not obtain the cocaine in this case from the D efendant; and (3)
a deputy sheriff w ho transported Polk and the D efendant to jail and claimed to hav e ov erheard
them discussing the f act that Polk obtained the cocaine in this case from another source. Hav ing
review ed this new ev idence, we are unconv inced that the evidence w ould have changed the result
in this trial. E ach of the af fidav its, w ith the exception of that of the deputy sheriff, w as submitted
by indiv iduals who w ere incarcerated. Furthermore, as the S tate argues, the conversation
betw een the two def endants in the presence of the deputy sheriff “reeks of a setup.” C onsidering
the questionable credibility of this evidence, w e conclude that the trial court did not abuse its
discretion by deny ing the D efendant’s m otion for new trial.



                                                       -5-
                                                   III. H E A R S A Y

        T hird, the D efendant argues that the trial court erred by allow ing im proper hearsay
testimony by K enne th J ones . S pecifically, the D efendant complains of the f ollow ing colloquy,
w hich occurred on direct examination of K enneth Jones by the S tate:
        Q     A lright, so wit h regard to the first time that you saw either of [the
        defendants], what w ere you doing on that day ?
        A O n th at da y , I w as rid in g aro un d h ere in B ol iv ar. I cam e i n c on ta ct w it h M r.
        Polk on T hird and S ycam ore Street. A nd, I asked him if he knew w here I could
        purchase 50 dollars w orth of C rack C ocaine. A nd, he advised me he could take
        me to w here I could buy it.

F ollow ing this testimony , counsel for the Def endant objected, stating that the testimony w as
hearsay as to her client, and the trial court ov erruled the objection.

        K enneth Jones apparently m ade the statement in question to suggest that because Polk
ev entually led O ff icer Jones to the D efendant, the D efendant w as the indiv idual w ho sold Jones
the cocaine. F or this reason, we agree that the statement w as hearsay as to the D efendant.
H ow ev er, w e also conclude that the statement was of questionable relev ance with regard to the
D efendant, see T enn. R . Ev id. 401, 402, and that its admission into ev idence w as harmless. W e
note that Polk directed Jones to other “sources” prior to approaching the D efendant.

         Jones later testified that he and Polk approached the Def endant, and Polk asked the
D efendant if he could “do 50." A ccording to Jones, the D efendant told Jones to “make the
bloc k,” and w hen Jones returned, Polk prov ided him w ith the cocaine. In light of this ev idence
and other ev idence presented at trial indicating the Def endant’s guilt, w e are satisfied that any
erro r made in allow ing J ones ’ i niti al te stim ony w as ha rmle ss. S ee T enn. R . C rim. P. 52(a);
T enn. R. A pp. P. 36(b).

                                        IV . M O T IO N F O R M I S T R IA L

        F ourth, the D efendant argues that the trial court erred by deny ing his motion for mistrial.
T he defense mov ed for a mistrial following this testimony by K enneth Jones:
        Q W hen you testified that y ou had been involv ed in his arrest, tell me how you
        w ere inv olv ed.
        A    I was inv olv ed in M r. Polk’ s arrest.
        Q O kay, so y ou w eren’t inv olv ed in M r. B eauregard’s arrest?
        A    M r. B eauregard w as already incarcerated.

T he trial court re sp on de d t o t he D e f en da nt ’ s m o ti on f or m i st ri al by s t at in g , “ T h e j ury w i ll
disreg ard the last stat em ent b y the w itne ss.”




                                                            -6-
           “T he granting or denial of a mistrial is w ithin the sound discretion of the tria l cou rt.”
S tate v . M cK inney , 929 S .W .2d 4 04 , 40 5 (T en n. C rim . A pp . 19 96 ). T hi s C ou rt w il l n ot di st urb
such a decision unless a show ing of an abuse of discretion is m ade. S ee id. F urt he rm ore , a j ury
is presumed to ha v e f ollo w ed th e curati v e ins tructi ons o f t he co urt. S ee S tate v. S mith , 993
S .W .2d 6, 30 (T enn. 1999).

        H ere, the w itness did not testify that the D efendant had been prev iously incarcerated for
a separate offense. Instead, he stated that he was not inv olv ed in the Def endant’s arrest because
the D efendant “w as already incarcerated.” It is unclear w hether the w itness was referring to the
D efendant’s arrest for the charge of w hich he is presently conv icted or to his arrest for another
charge. W e conclude that such a v ague statem ent w as unlikely to hav e produced prejudice
against the D efendant. F urthermore, the trial court imm ediately provided a curative instruction
to the jury to disregard the witness’ statement. In light of the curativ e instruction and the
v agueness of the statement, w e are satisfied that the admission of the statement w as harmless,
see T enn. R. A pp. P. 3 6(b); T enn. R . C rim. P. 52(a), and that the trial court did not abuse its
discretion by deny ing the D efendant’s m otion for mistrial.

                               V . IN D I V ID U A L V O IR D IR E O F J U R O R

         F ifth, the D ef endant argues that the trial court erred w hen it denied the Defendant’s
request for the individual v oir dire of juror N orma R ussell. A ccording to aff idav its submitted
by the D efendant, juror Russell observed the D efendant in handcuffs w hile the jurors w ere
arriv ing at the courthouse for jury duty. T he D efendant maintained that R ussell “stared” at him
and the handcuff s as she passed him . F ollow ing this encounter, the Def endant requested the
indiv idual v oir dire of R ussell to determine w hether she had been influenced by seeing the
hand cuf fs . T he tria l cou rt deni ed th e D ef enda nt’ s reque st.

        R ule 24(a) of the T ennessee R ules of C riminal Procedure prov ides in pertinent part that
"[t]he court, u pon m otio n of a party or on it s ow n m otio n, m a y direct that any portion of the
questioning of a prospectiv e juror be conducted out of the presence of the tentativ ely selected
jurors and o ther pros pect iv e jurors." T enn. R . C rim. P . 24(a) (emphasis added). Thus, the trial
court's authority to cond uct i ndiv idua l v oir dire i s perm issi v e rather th an m anda tory . S ee S mith ,
993 S .W .2d at 29. The question of w hether prospectiv e jurors should be questioned indiv idually
addresses itself to the sound discretion of the trial court, and absent clear abuse, an appellate
court w ill not i nterf ere w ith t he tria l cou rt's ex ercise of its d iscret ion. S ee S tate v . Burton, 751
S .W .2d 440, 452 (T enn. C rim. A pp. 1988). How ev er, this C ourt has held that “when i t is
believ ed there is a significant possibility that prospective jurors have been exposed to potentially
prejudicial material, indiv idual v oir dire is mandated w ith respect to each prospectiv e juror's
exposure to the prejudicial material.” Id. (c it in g S omm erville v . State , 521 S.W .2d 792, 797
(T enn.1975); S tate v. C laybrook, 736 S.W .2d 95, 98-101 (T enn.1987)).

       In this case, we are unable to find prejudice resulting from any encounter betw een the
D efendant and R ussell. Because the record in this case does not contain a complete transcript


                                                         -7-
of v oir dire, there is no proof in the record regarding questions asked of R ussell during group
v oir dire, if any , or proof concerning peremptory challenges. “Only w hen a defendant exhausts
all his peremptory challenges and is f orced to later accept an incompetent juror (propter
defectum) can he complain about the jury com position. A bsent proof on the use of peremptory
challenges it is necessary f or the defendant to show actual prejudice or bias (propter affectum)
in order to prev ail on his jury complaint s.” S ta te v . K il bu rn, 782 S.W .2d 199, 202 (T enn. C rim.
A pp. 1989) (citations omitted). M ore im po rta nt ly , ho w ev er, w e h av e n o re co rd t ha t N orm a
R ussell actually served on the jury, or that any m ember of the jury w as aw are of any such
incident. A bsent a showing of prejud ice, w e must conclude that the trial court did not abuse its
discretion by denying the D efendant the opportunity to conduct the indiv idual v oir dire of juror
R ussell.


                                V I. IM P A N E L I N G O F T H E J U R Y

        In his sixth assignm ent of error, the D efendant argues that the trial court erred by deny ing
him his right to be present for the impaneling of the jury. A ccording to the D efendant, he w as
being held in a holding cell outside the courtroom prior to trial, and the sheriff’ s deputies refused
to allow him to enter the courtroom w hen the judge began to call the jury roll. H e w as later
allow ed to join his attorney at counsel table.

          A n accused has a fundam ental right to be present at his own trial. S ee S tate v. M use, 967
S .W .2d 764, 766 (T enn. 1998) (citing U nited S tates v. A likpo, 944 F .2d 206, 208 (5th C ir.1991);
U nited S tates v . Hernandez , 873 F.2d 516, 518 (2nd C ir.1989)). This right is guaranteed not
only by our federal and state constitutions, but also by R ule 43 of the T ennessee Rules of
C riminal Procedure. S ee id.; see also T enn. R . C rim. P. 43(a). “Presence at ‘trial’ means that
the defendant must be ‘present in court from the beginning of the impaneling of the jury until the
reception of the v erdict and the discharge of the jury.’" M use, 967 S.W .2d a t 7 66 (q uo ti ng L ogan
v . State ,173 S.W . 443, 444 (T enn. 1915)).

        O ur supreme court has held that a defendant’s total absence from the entire v oir dire
process is not subject to harmless error analy sis a nd co nsti tute s rev ersibl e error. S ee id. at 768.
H ow ev er, our supreme court has also indicated that the absence of a D efendant during a “small
portion of the j ury sele ctio n proce ss” m ay be de em ed ha rmle ss. Id. T he court has noted that “the
presence of the defendant during jury selection [has] a reasonably substantial relation to his
opportunity to def end against the charge.” Id. at 767.

             A l th ou g h the record of v oir dire is incomplete in this case, follow ing objection to the
transcript by counsel for the defense, the trial judge supplemented the record from his m emory,
s ta ti ng ,
                       T his case was set f or trial on the day in question; the C lerk was in the
             process of calling the roll, the prospectiv e jurors’ names.



                                                   -8-
                A t th at po in t i n t im e, t w o s he rif f’ s deputies did bring M r. B eauregard,
        w ho w as in jail, a nd . . . lead him to the seat, w here defendants sit at counsel
        table, prior to trial.
                M s. K aess [counsel for the D efendant] objected to the manner in which
        the defendant w as brought into the C ourtroom; and the C ourt overruled the
        objection, because that’s the way nearly all clients are brought into the
        C ourtroom, here in H ardeman C ounty, that hav e been in jail.
                A nd that’s the record.

In addition, the record indicates that before v oir dire began, the court asked all parties if they
w ere ready to proceed, and counsel for the Defendant indicated affirmativ ely. T hus, there is no
indication that the Def endant was absent from any portion of the v oir dire process except part
of the initial roll call of prospectiv e jurors. W e find no prejudice to the Def endant from his
absence during this portion of the jury selection process. W e therefore conclude that any error
resulting from the D efendant’s brief absence from the courtroom at the beginning of jury
im pane ling w as ha rmle ss. S ee T enn. R . A pp. P . 36(b); T enn. R . C rim. P . 52(a).

V II. M A N N E R IN W H IC H D E F E N D A N T W A S B R O U G H T IN T O T H E C O U R T R O O M

         In his seventh issue on appeal, the Defendant contends that the trial court erroneously
ov erruled his o bjec tion conc erning the m anne r in w hich he w as brou gh t int o the courtroo m. H e
states that he was not permitted to use the door av ailable to the general public, but instead was
forced to enter the courtroom from a holding cell adjacent to the courtroom and w as escorted to
the defense table by tw o sheriff ’s depu ties . H e argues that “this conduct depriv ed him of a f air
trial because it show ed the jurors that he w as incarcerated . . . [and] encouraged them to speculate
on w hat crime he may hav e committed in the past and w hy he w as treated differently th an his
code fe ndan t.”

          In support of his argument, the Def endant cites cases in which the review ing court found
erro r because the defendant w as forced to wear prison clot hes o r shack les d uring trial. S ee, e.g .,
E stelle v . W illiams , 425 U .S . 501 (1976); W illocks v. S tate, 546 S.W .2d 819, 820 (T enn. C rim.
A pp. 1976). W e agree that “a defendant should not be required to w ear prison clothing or be in
handcuffs during trial in a courtroom, ex cept insofar as the trial court, in its sound discretion may
find it necessary to prev ent escapes, v iole nce o r mis cond uct w hich w ould im pede the t rial.”
S tate v . Baker, 751 S .W .2d 154,164 (T enn. C rim. A pp. 1987). How ev er, here, the D efendant
entered the courtroom escorted by tw o guards who did not restrain him in any w ay. T he
D efendant does not claim that he w as shackled during trial or forced to w ear prison atti re. A s
the U nite d S tate s S uprem e C ourt ha s obs erv ed,
          [w ]hile shackling and prison clothes are unmistakable indications of the need to
          separate a defendant from the community at large, the presence of guards at a
          defendant’s trial need not be interpreted as a sign that he is particularly dang erous
          or culp able . . . . Indeed, it is entirely possible that jurors w ill not infer anything
          at all from the presence of the guards.


                                                     -9-
H olbrook v . Fly nn, 475 U .S. 560, 569 (1986).

        It is unclear from the lim ited record concerning the D efendant’s entrance into the
courtroom w hat eff ect, i f a ny , this ev ent may hav e had on the jury. T here is nothing in the
record, how ev er, to indicate that the D efendant w as prejudiced by the manner in w hich he w as
broug ht in to th e cou rtroom .
        G enerally, the trial court, w hich has presided over the proceedings, is in the best
        position to make determinations regarding how to achieve [the] primary purpose
        [of ensuring a fair trial], and absent some abuse of the trial court’s discretion in
        marshalling the trial, an appellate court should not redetermine in retrospect and
        on a c old rec ord how the c ase s houl d hav e bee n bet ter tried .

S tate v . Franklin, 714 S.W .2d 252, 258 (T enn. 1986). Here, the trial court ov erruled the
D efendant’s objection to the manner in w hich he entered the courtroom, and finding no prejudice
in th e record be fo re us, w e are una ble t o dis cern any reason to se t asi de th at ruli ng .

                                          V III. S E N T E N C IN G

         F inally, the D efendant argues that he w as improperly sentenced. H e w as sentenced to
serve t he m ax i m u m se nt en ce f or a R a ng e I standard off ender of six years for the delivery of less
than 0.5 grams of cocaine, a C lass C fe lony . S ee T enn. C ode A nn. § 39-17-417(a), (c)(2). The
D efendant contends that he should hav e been sentenced in the mid-range for the off ense.

        W hen an accused challenges the length, range, or manner of serv ice of a sentence, this
C ourt has a duty to conduct a de nov o rev iew of the sentence with a presumption that the
determinations made by the t rial co urt are correct. S ee T enn. C ode A nn. § 40-35-401(d). This
presumption is “conditioned upon the affirmativ e showing in the record that the trial court
considered the sentencing principles and all relev ant facts and circum stan ces.” S tate v. A shby ,
823 S .W .2d 166, 169 (T enn. 1991).

        W hen conducting a de nov o review of a s entence, this C ourt must consider: (a) the
ev idence, if any , received at the trial and sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternativ es; (d) the nature and
characteristics of the criminal conduct involv ed; (e) any statutory m itigating or enhancement
factors; (f) any statem ent made by the defendant regarding sentencing; and (g) the potential or
lack of potential fo r rehabilitati on or treat me nt. S ee S tate v . Tho mas , 755 S.W .2d 838, 844
(T enn. C rim. A pp. 1988); T enn. C ode A nn. §§ 40-35-102, -103, -210.

        If our rev iew reflects that the trial court follow ed the statutory sentencing procedure, that
the court imposed a law ful sentence af ter having giv en due consideration and proper weight to
the factors and principles set out under the sentencing law, and that the trial court’s f indings of
fact are adequately supported by the record, then we m ay not m odify the sentence even if w e



                                                    -10-
w ould hav e pref erred a dif fe rent resul t. S ee S tate v . Fletcher, 805 S .W .2d 785, 789 (T enn. C rim.
A pp. 1991).

          In sentencing the Def endant, the trial court applied one enhancement f actor, that “the
defendant has a prev ious history of criminal convictions or criminal behav ior in addition to those
necessary to establish the appropriate range,” Tenn. C ode A nn. § 40-35-114(1), and no
mitig ating factors. Our rev iew of the record clearly conf irms that the D efendant does indeed
hav e a le ng thy criminal record, whi ch includes sev eral prior drug conv ictions. H e has
approxim ately sev enteen prior conv ictions, not counting traf f ic of f en se s. T he D ef en da nt ’ s re co rd
is particularly lengthy considering that he w as only tw enty-three years old at the time of
s en te nc in g . T he presentence report also reflects that the D efendant dropped out of high school
and that he had been unemploy ed for approxim ately tw o y ears before the commission of this
off ense. H av ing review ed the record in this case, we conclude that the Defendant’ s background
and extensiv e criminal history demonstrate a lack of potential for rehabilitation and sufficiently
supp ort the im posi tion of the m ax im um sent ence in th is ca se.

         T he judgment of the trial court is accordingly aff irmed in all respects.




                                                      -11-
