        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE            FILED
                     FEBRUARY SESS ION, 1997        March 12, 1999

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk

STATE OF TENNESSEE,        )   C.C.A. NO. 03C01-9604-CC-00167
                           )
      Appellee,            )
                           )   HAMBLEN COUNTY
VS.                        )
                           )   HON. JAMES EDWARD BECKNER
EDDIE L. HOWARD,           )   JUDGE
                           )
      Appe llant.          )   (Direct Appeal - Sale of ½ gram or
                           )   more of Cocaine)




FOR THE APPELLANT:             FOR THE APPELLEE:

PAUL G. WHETSTONE, P.C.        JOHN KNOX WALKUP
502 North Jackson Street       Attorney General and Reporter
Morristown, TN 37814
                               TIMOTHY F. BEHAN
                               Assistant Attorney General
                               425 Fifth Avenue N.
                               Nashville, TN 37243

                               C. BERKELEY BELL
                               District Attorney General

                               JOHN DUGGER
                               Assistant District Attorney
                               510 Allisto n St.
                               Morristown, TN 37814




OPINION FILED ________________________

AFFIRMED; SENTENCE MODIFIED

JERRY L. SMITH, JUDGE
                                     OPINION
       On November 29, 1995, a Ham blen C ounty jury con victed A ppella nt Edd ie

L. Howard, Jr., of four counts of selling .5 or more grams of a Sch edule II

controlled substance. After a sentencing hearing on the same day, the trial court

imposed a sentence of nine years for each conviction, with two of the sentences

to be served consecutively. Appellant challenges both his convictions a nd his

sentences, raising the following issues:

       1) wheth er the S tate es tablish ed a p roper chain of custody for the cocaine
       that was introduced into evidence;
       2) whether the trial court erred when it admitted audio tapes, video tapes,
       and transcripts into evidence;
       3) whether the trial c ourt er red wh en it faile d to inc lude c ertain ju rors in
       Appellant’s venire;
       4) whether the referral to Appellant as a “deale r” by a witne ss for the S tate
       prejud iced A ppella nt to the extent th at he d id not re ceive a fair trial;
       5) whether the trial court imposed excessive sentences; and
       6) whether the trial court erred when it ordered two of the sentences to run
       consecu tively.

After a review of the record, we affirm the judgm ent of the tria l court but m odify

the se ntenc es to ru n con curren tly



                                         I. FACTS




       Detective Wayne Mize of the Morristown, Tennessee Police Department

testified that on April 21, April 24, April 26, and May 5, 1995, he and some other

police officers made audio and video recordings of transactions in which

Appellant sold cocaine base to police informant Connie Cervino during an

undercover operation. Mize testified that before each of the four transactions,

police officers would enter Cervino’s apartment, give Cervino $200.00, and then

set up an d turn o n aud io and video recording devices. The officers would then



                                            -2-
position themselves outside of Cervino’s apartment in order to photograph

Appellant as he entered and exited the apartment. When the officers le ft the

apartment, Cervino would call Appellant and ask him to deliver cocaine to her

apartm ent. When Appellant arrived, he would put the cocaine on the coffee table

and Cervino wou ld pay him $2 00.00. After A ppellant left the apartment, the

officers would wait for five to ten minutes and then would re enter the apartm ent.

Either Detective Mize or Officer Dan Cox would then take possession of th e

cocaine . The office rs would then turn off the reco rding de vices.



                             II. CHAIN OF CUSTODY




      Appellant contends that the trial court s hould have g ranted his motion for

judgment of acquittal because th e State failed to establish a proper chain of

custody for the cocaine that was introduced into evidence. Sp ecifically, Appellant

claims that a proper chain of custody was not established because the proof

shows that Cervin o had “multip le opp ortunitie s” to “tam per with [the] evid ence in

any mann er [that] she pleased ” before th e police o fficers took posse ssion of it.

We disagree.



      Before tangible evidence may be introduced, the party offering the

evidence must either c all a witn ess w ho is a ble to identify the evidence or must

establish an unb roken c hain of cu stody. State v. Holloman, 835 S.W.2d 42, 46

(Tenn. Crim . App. 1 992). H owev er, “[t]he identity o f tangib le evidence need not

be proven beyond all possibility of d oubt, an d all poss ibility of tampering need not

be excluded.” Id. Rather, “[i]t is sufficie nt if the fa cts est ablish a reas onab le

assurance of the identity of the evidenc e.” State v. Woods, 806 S.W.2d 205, 212

                                          -3-
(Tenn. Crim . App. 1990). “Whether the required chain of custody has been

sufficie ntly established to justify the admission of evidence is a matter committed

to the sound discretion of the trial court, and the court’s determination will not be

overturned in the absence of a clearly m istaken e xercise o f that discre tion.”

Holloman, 835 S.W.2d at 46.



      Appellant does not ch alleng e the c hain of custody for the cocaine after the

time that Detective Mize and Officer Cox took possession of it. Instead, Appellant

contends that the chain of custody was not established because Cervino did not

testify at trial and because the video tapes of the four transactions show that

Cervino had multiple opportunities to tamper with the cocaine before Mize and

Cox took possession of it. We have reviewed the four vide o tape s, and we co uld

see no instance in which Cervino appeared to tamper with the evidence.

Although Cervino did not testify at trial, her link in the chain was sufficiently

established by the video and audio tapes, the testimony of Detective Mize, and

the testimony of Officer Cox. See id. (stating that un availab le witne ss’ link in the

chain was sufficiently established by testimony of other witnesses). This issue

has no merit.



             III. ADMISSIBILITY OF TAPES AND TRANSCRIPTS




      Appellant conte nds th at the tria l court e rred w hen it a dmitte d the a udio

tapes, video tapes, and tran scripts into evidence. Specifically, Appellant argues

that because the tapes and transcripts contain statements made by Cervino and

Cervino did not testify at trial, admission of this evidence violated his right to




                                          -4-
confrontation under the Sixth Amendment to the United States Constitution and

Article I, Section 9 of the Tennessee Constitution.1 We disagree.



        In State v. Jones, 598 S.W .2d 209, 223 (Tenn. 1980), the Tennessee

Supreme Court held that an accused’s constitutional right to confront the

witnesses against him was not violated by the introduction of audio taped

conversations between the accused and a n inform ant wh o did n ot testify a t trial.

The supreme court stated that

        tape recordings and compared transcripts are admissible and may be
        presented in evidence by any witness who was present du ring the ir
        recording or who monitored the conversations, if he was so situated and
        circumstanced that he was in a position to identify the declarant with
        certainty, and p rovide d his te stimo ny in wh ole, or in part, comp orts with
        other rules of evidence.

Jones, 598 S.W .2d at 223 .



        In this cas e, De tective Miz e testified that he could identify Appellant and

Cervino in all four video tapes. Mize also tes tified that he had monitored the

audio recording of the transactions on April 24, April 26, and May 5 while they

were occurring and he had reviewed the transcripts of those recordings and

determined that they were accurate. In addition, Officer Cox testified that he had

monitored the audio recording on April 21 and he had reviewed the transcript and

determined that it was accurate. Further, Officer Rick Harmon testified that he

photographed Appellant when he entere d and exited C ervino ’s apa rtmen t on all

four occasions and he identified A ppella nt in the photo graph s.                        Only after this


        1
           The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right to . . . be con fronted w ith the witnes ses ag ainst him .” U.S. Co nst. am end. VI. Sim ilarly, Article I,
Section 9 provides “[t]hat in all criminal prosecutions, the accused hath the right to . . . meet the witnesses
face to face.” Tenn. Const. art I, § 9.

                                                     -5-
testimony was g iven were the juro rs allow ed to lis ten to p ortions of the a udio

tapes while they simultaneously watched the soundless video tapes of the four

transac tions. We conclude that this procedure satisfied the requirements set

forth in Jones. More over, C ervino ’s statem ents we re not offer ed or inten ded to

be subs tantive eviden ce.              Ind eed, C ervino ’s state men ts are c omp letely

insignificant except to the exten t that they pu t Appella nt’s record ed statem ents

in context. In effect, Cervino was simply not a “witness against” Appellant, and

thus, the right to c onfronta tion is not im plicated. See State v. George Harless,

No. 03C01-9203-CR-00105, 1993 WL 305786, at *3 (Tenn. Crim. App., Knoxville,

Dec. 6, 1993).         Appellant’s right to confrontation wa s fully sa tisfied b y his

thorough cross-examination of Detective Mize , Officer Cox, and Officer Harmon.

See id. This issu e has n o merit.



                                     IV. JURY SELECTION




        Appellant contends that the trial court erre d when it denied h is motion to

have jury pan el one included in his venire. Specifically, Appellant argues that

because he is African-American and panel one w as the only panel that included

African-American mem bers, th e trial co urt’s failure to purposefully include panel

one in Appellant’s venire deprived him of his right under Article I, Section 8 of the

Tennessee Constitution2 to be tried by a jury of his peers. We disagree.



        The record indicates that when Appellant made his rather unique motion,

the trial court stated that to purposefully include the panel containing African-



        2
         Article I, Section 8 provides “[t]hat no man shall be taken or imprisoned . . . but by the judgment
of his peers.” Tenn. Const. art I, § 8.

                                                   -6-
Americans would be just as ba d as to purpo sefully e xclude the pa nel. Thus, the

trial court concluded that the better p ractice would be to p ut the n umb ers of a ll

perspective jury panels in a box and then have the clerk draw the numbers at

random. Jury panel one was not selected.



      W e conclude that the trial court’s procedure in s electin g the ju ry in this

case did not violate Appellant’s right to be tried by a jury of his peers in any way

whatsoeve r.   Indeed, Tennessee courts have repeatedly held that although

“juries must be drawn from a source fairly representative of the community[,] we

impose no requ iremen t that petit juries actually chosen must mirror the

comm unity and reflect the various distinctive group s in the population .” State v.

Nelson, 603 S.W.2d 158, 160 (Ten n. Crim . App. 1980) (quoting Taylor v.

Louisiana, 419 U .S. 522, 5 38, 95 S .Ct. 692, 7 02, 42 L .Ed.2d 6 90 (197 5)); see

also Harvey v . State, 749 S.W.2d 478, 481 (Tenn. Crim. A pp. 198 7). In short,

there is no constitutional guarantee requiring a defendant be tried by a jury wholly

or partially composed of individuals of his or her own race. Harvey, 749 S.W.2d

at 481 (citing Wh eeler v. Sta te, 539 S.W.2d 812 (Tenn. Crim . App. 1 976)) . This

issue ha s no m erit.



               V. IMPROPER COMMENT BY A STATE WITNESS




      Appellant contends that he was prejudiced to the point that he did not

receive a fair trial when Officer H armon referred to Appellant as a “dealer” during

his testimony. We disagree.




                                         -7-
       The record indicates that during the direct examination of Officer Harmon,

the following colloquy occurred:

             [MR. DUG GER ]: Appro ximately h ow long did [App ellant] stay in the
       apartm ent? You were outside watching him go in and out; how long did
       he stay?
             [OFFICER HARMON]: Just a couple minutes. Just like the rest of
       the dealers that we dealt with—
             MR. W HETS TON E: Objection, you r Honor.
             THE COU RT: S ustained . Be care ful.


       Harm on’s statement was undoubtably improper. However, we conclude

that Appe llant is no t entitled to a new trial because of it. In State v. S mith, 893

S.W.2d 908, 92 3 (Ten n. 1994 ), the Tenn essee Supre me C ourt held that a

witness’ improper reference to the defendant’s prior jail time did not entitle the

defendant to a ne w trial because the trial court had given a curative instruction

and in addition, the defendant could not have been prejud iced by the rem ark

given the ove rwhelm ing proof of guilt. Similarly, in State v. Baker, 751 S.W.2d

154, 164 (Tenn. Crim. App. 1987), this Court held that a witness’ improper

reference to the accused’s prior criminal record d id not entitle th e accu sed to a

new trial because the trial court had given a curative instruction and further, the

evidence in the record overwhelmingly established the guilt of the accused.

Although these decisions were based in part on the giving of curative instructions

by the trial courts, we note that Appellant failed to ask for a curative instruction

in this case. Further, we note that Harmon’s brief comment was not solicited by

the State an d it was no t repeate d. Moreo ver, given the overwhelming proof of

Appe llant’s guilt that was p resen ted at tria l, any error w as clearly h armles s. See

Tenn. R. App. P. 36(b) (stating that eve n if app ropria te, relief s hall not be granted

“unless, considering the whole record, error involving a substantial right m ore

probab ly than no t affected th e judgm ent”). This issue ha s no m erit.


                                           -8-
                         VI. LENGTH OF SENTENCES




      Appellant contends that the trial court erroneously sentenced him to a

longer term than he deserves for each of his four convictions. We disagree.



      “When reviewing senten cing issu es . . . including the granting or denial of

probation and the length of sentence, the appellate co urt shall conduc t a de novo

review on the record of such issues . Such review shall be conducted with a

presumption that the determinations made by the co urt from which the ap peal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presum ption of correc tness which acco mpa nies th e trial co urt’s ac tion is

conditioned upon th e affirma tive show ing in the re cord tha t the trial court

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s

statements, the nature and character of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.               “The defendant has the burden of

demonstrating that the sentenc e is imprope r.” Id. Because the record in this

case indica tes tha t the trial c ourt pr operly considered the sentencing principles

and all relevan t facts a nd circ ums tance s, our re view is d e novo with a

presumption of correctness.



      In this case, App ellant was con victed of four coun ts of selling .5 or more

grams of a Schedule II controlled substance, a Class B felony. See Tenn. Code

                                         -9-
Ann. § 39-17-417(c)(1) (Supp. 1998). The sentence for a Range I offender

convicted of a Class B felony is between eight and twelve years. Tenn. Code

Ann. § 40-35-112(a)(2) (1997). When both enhancement and mitigating fac tors

are applicable to a senten ce, the court is directed to begin with the minimum

sentence, enhance the sentence within the range as appropriate for the

enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors. Tenn. C ode Ann . § 40-35-210 (e) (1997).



          In sentencing Appellant to a term of nine years for each conviction, the trial

court determined that enhancement factor (1) applied because Appellant had a

history of crimina l conviction s or beh avior in add ition to those neces sary to

establish the appropriate sentencing range. See Tenn. Code Ann. § 40-45-

114(1) (1997). The trial court also determ ined that none of the enum erated

mitigating factors of T ennes see Co de Ann otated se ction 40-3 5-113 a pplied.



          Initially, Appe llant contends that the trial court erred when it applied

enhancement factor (1). We disagree. The record indicates that Appellant had

previous convictions fo r driving without a driver’s license in Tennessee and for

retail theft in Illinois. Thus, the trial court properly applied this enhancement

factor.



          Appellant also contends that the trial court should have applied mitigating

factor (1) because his criminal conduct neither caused nor threatened serious

bodily injury. See Tenn. Code Ann. § 40-3 5-113(1) (199 7). Howeve r, this Court

has held th at this fa ctor is in applic able in case s involving the sale of cocaine.

State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim. App. 1994). Even if this factor

                                           -10-
had been applied, it would have been entitled to little we ight. See State v. Hoyt

Edward Carro ll, No. 03C01-9607-CC-00254, 1997 WL 457490, at *4 (Tenn. Crim

App., Knoxville, Aug. 12, 1997) (holding that in cases involving drugs, mitigating

factor (1) is entitled to little weight).



        Appellant further contends that the trial court should have applied

mitigating factor (13) becau se he is th e father o f an infant s on. See Tenn. Code

Ann. § 40-35-113(13) (1997). We are unpersuaded that the mere fact that

Appellant has fathered a child is entitled to any mitigating weight. See State v.

John Allen Chapman, No. 01C01-9604-CC-00137, 1997 WL 602944, at *21

(Tenn. Crim. App., Nashville, Sept. 30, 1997) (“We find no nexus between

paternityship and mitigation of punish ment.”).



        In our de novo re view, w e hold that one enhancement factor and no

mitigating factors apply to Appellant’s sentences. Thus, we hold that a sentence

of nine years for ea ch of A ppella nt’s co nviction s is entir ely app ropria te in this

case.



                        VII. CONSECUTIVE SENTENCING




        Appellant conten ds that the trial court erred when it orde red two of his

sentences to be s erved cons ecutively.            On th is issue w e mus t agree w ith

Appe llant.



        In gene ral, con secu tive sen tencin g ma y be im pose d in the discretion of the

trial court up on a de termina tion that on e or mo re of the follo wing criteria exist:

                                            -11-
        (1) The defendant is a professional criminal who has knowingly devoted
        himself to criminal acts as a major source of livelihood;
        (2) The defen dant is an offe nder w hose record of crim inal ac tivity is
        extensive;
        (3) The defen dant is a dangerous mentally abnormal person so declared
        by a com peten t psych iatrist wh o con clude s as a r esult of an investigation
        prior to sentencing that the defendant’s criminal conduct has been
        characterized by a pa ttern of r epetitive or comp ulsive beh avior with
        heedless indifference to consequences;
        (4) The defendant is a dangerous offender whose beha vior indic ates little
        or no regard for human life, and no hesitation about committing a crime in
        which the risk to human life is high;
        (5) The defendant is convicted of two (2) or more statutory offenses
        involving sexual abuse of a minor with consideration of the aggravating
        circumstances arising from the relationship between the defendant and
        victim or victims, the time spa n of defenda nt’s undetected sexual activity,
        the nature and sco pe of the se xual ac ts and the exte nt of the residu al,
        physical and mental damage to the victim or victims;
        (6) The defendant is sentenced for an offense committed while on
        probation; or
        (7) The defend ant is sen tenced for crimina l contem pt.


Tenn. C ode Ann . § 40-35-115 (b) (1997). 3



            In determining that two of Appellant’s sentences should be served

consecu tively, the trial court found that Appellant is “a professional criminal who

has knowingly devoted himself to criminal acts as a major source of livelihood.”

The trial court stated that it based this finding on evidence that during the time

period when the four offenses at issue in this case were committed, almost all of

Appe llant’s incom e cam e from th ese fou r drug tran sactions .




        3
         In State v. Wilkerson, 905 S.W .2d 933, 937–38 (Ten n. 1995), the Tennesse e Suprem e Court
imposed two ad ditional requirements for consecutive sentencing— the court must find that consecu tive
sentences are reaso nably related to the severity of the offenses com mitted and that consecutive
sentences are necessary to protect the public from further criminal conduct. At this time, it is unsettled
whether Wilkerson applies to all seven of the statutory categories for consecutive sentencing or only the
“dange rous off ender” c ategory. See State v. David Keith Lane, No. 03C01-9607-CC-00259, 1997 WL
33206 1, at *6 (Te nn. Crim . App., Kn oxville, June 18, 1997 ), perm. app. granted, (Tenn. 1998). Our
determination that consecutive sentences are not appropriate in this case is the same under either
interpretation.

                                                  -12-
       W e conc lude th at the re cord s imply d oes n ot sup port the trial court’s

finding that Appellant is “a professional criminal who has knowingly devoted

hims elf to crimina l acts as a major source of livelihood.” As previously stated,

Appellant’s prior criminal record consists only of one prior conviction for retail

theft in Illinois and one or pos sibly two convic tions fo r driving withou t a licen se in

Tennessee.      The record also indicates that in committing these offenses,

Appellant mere ly obtain ed po sses sion o f a bas ketba ll and a batting glove. It

goes without saying that these two items cannot be considered a major source

of Appellant’s livelihood by any stretch of the imagination. Further, there is

abso lutely no evidence in the record that Appellant has ever obtained anything

of value through any other criminal offenses for which he was not convicted. The

trial court apparently concluded that because Appellant was only earning $25–50

per week at his jo b, App ellant must have been obtaining his livelihood almost

entirely through crimina l activity. W hile this theory may w ell have been true, it

remains only a theory because it was not supported by any evidence in the

record. In short, we hold tha t the record doe s not suppo rt a finding that Appellant

is a “professional criminal” such as to warrant consecutive sentences.



       According ly, Appellant’s sentences are modified to provide for concurrent

sentencing for all four convictions in this case. In all other respects, the judgment

of the trial court is affirmed.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




                                           -13-
CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                             -14-
