*1 528 makes further issue the evidence is to support insufficient Although sufficiency verdict. post is not reviewable convic
tion relief cases 507 Gant v. 133, (Tenn.Crim.App.1973), we have re viewed evidence and find that it required by the standard meets Jackson v. 307, Virginia, U.S. 99 S.Ct. (1979). L.Ed.2d 560 stated, For reasons court is affirmed. CORNELIUS, JJ., DUNCAN and concur. Tennessee, Appellee,
STATE Donald JENKINS and Edward
Black, Appellants. Tennessee, Appeals Criminal
at Knoxville. March 1987. *2 II, appel- Hooper, Newport, for
Ben W. lants. Report- Cody, Atty. & Michael Gen.
W.J. Gen., er, Conley, Atty. Nash- Asst. Robert Gen., Jr., ville, Schmutzer, Atty. Dist. Al Owens, Atty. Sevierville, Dist. Phil Asst. Gen., Newport, appellee. for
OPINION
JONES, Judge.
Ed-
appellants,
Donald Jenkins
Black,
possessing
convicted of
ward
were
in
of
marijuana with intent to sell
violation
39-6-417(a)
possessing
T.C.A. §
shotgun in violation of T.C.A.
sawed-off
granted
The trial court
39-6-1713.
motion for
post-trial
acquitting
possessing
Black of
acquittal,
shotgun. After
the sawed-off
Black to a
hearing the trial
sentenced
years
Department
in the
term of three
of-
range
one standard
Corrections as
to serve a
was sentenced
fender. Jenkins
Department
year
term of one
drug
offense and ten
Corrections
county
possessing the
jail
days
range one standard
as a
sawed-off
permitted Jen-
offender.
concurrently
serve his sentences
kins to
county jail.
re-
appealed
their
to this Court as of
spective convictions
3(b), Tenn.R.App.P.
to Rule
right pursuant
(1)
appellants contend
In this
record is insuffi-
in the
contained
respective convic-
support
their
cient
(2) deny-
tions,
trial court erred
and the
acquittal
judgment of
motion for
ing their
four,
possession
the sawed-
to count
as
(3)
denying their motion
shotgun,
off
(4) excluding
testimony of a
suppress,
witness, (5) interrupting the direct exami-
witness, questioning
defense
nation of a
witness,
Black,
commenting
presence
marijuana.
and then
of the
witness, (6)
permitting
brother,
placed
he
Edward Black’s
testified
attorney general
district
to ask
assistant
marijuana in the attic and
basement
(7)
“phantom questions”,
appel-
places
in the
the offi-
his brother’s
where
challenge
and terms of
lants
marijuana.
found the
John Black had
cers
respective
sentences.
marijuana in
previously discovered the
purchased,
car
trunk of an old
*3
10, 1985,
July
the Governor’s
On
Task
place marijuana
to
the
in his broth-
decided
Marijuana
Force on Eradication of
was in
er’s residence to “scare him”.
County searching
marijuana
Cocke
in
plants
cultivation. Lieutenant Mike Do-
Black’s
was inconsistent
ver, helicopter pilot
Department
by
in
with the facts introduced
the
Force,
Safety
a member of the Task
of
bags
placed
Black testified he
two
State.
patches marijuana plants
of
spotted three
marijuana
carport.
in the attic over the
adjacent
in cultivation on land
to Edward
bags
by
He
Three
were found
officers.
Black’s residence. Dover directed mem-
marijuana
the
“old leaves” and
stated
was
marijuana
Force to the
bers of the Task
vegetation
was brown in color. The
found
plants could
de-
patches so that
the
be
green.
in the residence was
When shown a
gained
stroyed. The officers
access to the
vegetation
in the
photograph of the
found
only
plants through
property.
The
attic,
I
Black stated “that ain’t like what
path leading
patches originated
to the three
up
throwed
in there
Black
[the attic].”
edge
at the
of Black’s lawn.
in
any
plants
denied
interest in the
found
Black was inside his residence when the
adjoining
cultivation on the land
his broth-
Force officers arrived. When he
Task
er’s home.
investigate,
to
he was con-
went outside
sufficient,
This
finds there is
The
fronted
one of the officers.
officer
in
overwhelming, evidence contained
indeed
identification,
requested
he fur-
which
from
a rational trier of
the record
which
nished,
plants
marijuana
him
were
advised
beyond a
fact could conclude
reasonable
land,
growing
adjoining
found
guilty
the
were
doubt that
warnings. Black
read him the Miranda
possessing marijuana, a Schedule VI con
subsequently executed a consent to search
sell,
substance, with intent to
Tenn.
trolled
form,
permitted the
officers
which
13(e);
R.App.P.
Virginia,
and truck.
Jackson
search his residence
99 S.Ct.
532
outside,
agents. They
judge simply
questions
come
pointed
asked him to
trial
asked
complied
request. Black
concerning
and he
with their
facts
which would
been
to consent
of his resi-
refused
to a search
examination
elicited
counsel’s direct
dence. All of the
had dirt on their
officers
It
appellants’ theory
the witness.
was the
him he
shoes. One of
officers advised
placed
of defense
John Black
warrant, and,
go get
when he
subsequently
marijuana, which
discov-
returned,
doors off
would “kick
officers,
...
ered
in the attic and base-
[his]
Later,
one of
hinges.”
Black invited
their
ment of
home without
knowl-
the tele-
into his home to use
the officers
edge.
questions
asked
Agent
phone; and he
Shultz
assisted
judge
placing
marijuana
concerned
gaining access
the attic.
home of the
The trial
asked the
if the
also
witness
freely
court found
adjacent
plants
growing
found
on the land
search of
voluntarily
consented to the
his. He
home were
de-
This
has the
his residence.
growing the marijuana.
nied
Yarbro,
verdict;
weight
jury
of a
State v.
521,
(Tenn.Crim.App.1981);
524
per-
618 S.W.2d
In the future
should
unless this
appeal
it is conclusive on
counsel to examine his witnesses and
mit
preponder
finds that the
Court
try his
otherwise
case. See Collins v.
against
judgment.
v. Turn
State,
ates
State
Tenn.
220
“THE gentlemen, COURT: Ladies and during the course trial. this is you, while out before I don’t know by issue raised appel- seventh it any probative that has value this lants concerns and terms of the did, case. This man if you believe his imposed by sentences This court. testimony, confess what requires issue a de novo review of amount to the possession crime of appellants’ presump- “without sentences marihuana. It might felony be or it tion the determination made might be a If he lied misdemeanor. appeal court from which is taken are you he perjury, committed which is 40-35-402(d). correct.” T.C.A. grounds proper arrest. It’s to dis- arrest, his cuss I’m it confident will be conducting In the de novo man- review discussed, investigated, got but that’s dated Tennessee Criminal Sentenc- nothing to do with this case. You will ing amended, Reform Act of as look ... Whether or he’s arrested wheth- (a) any Court must consider re- evidence he’s any er not arrested not shed does hearing, ceived at the trial and light him, credibility. on his You saw (b) presentence report, (c) principles him, you you listened to him cross- saw (d) sentencing, arguments of counsel examined, examination, you direct heard sentencing alternatives, (e) relative to proof. other you You value what offense, nature and characteristics of the give testimony. speculate Don’t on (f) any mitigating factors, (g) or enhancing or going whether not he’s be arrested made statements prosecuted, because that doesn’t behalf, (h) own anything right to do with this now. potential potential or lack for rehabilita- may You come down.” tion or See treatment. 40-35- §§ should have refrained from 103 and 210. alluding to the issue of in- penury. The struction should have No been limited to the offered at the sentenc- *6 of the arrest witness based the incrimi- on ing hearing. appellants Both made state- nating statements by made the witness requested probation ments and of their re- However, the from witness stand. this spective When sentences. asked about the statement when taken in the context of the on position sentencing, State’s the assistant given by entire instruction trial the attorney general district told the court “we prejudicial not appellants. to the If object straight probation, would and error, the statement constituted it was leave all matters to the Court.” beyond harmless a reasonable doubt. See years age Black was 48 Edward when Wallis 248-249 he His education is was arrested. limited. (Tenn.Crim.App.1976) completed grade. He the sixth Since 1964 The sixth by appel issue raised the employed by Black the has been same com- asking “phantom lants concerns the obtaining pany. employment Prior questions” by the assistant district attor Black prior he was a farmer. has no crimi- general ney prosecuted who the record, enjoys he repu- nal and an excellent only In his brief Jenkins states this issue community. neighbors tation in his His questions “joint relating concerns to a of the community and members consider marijuana” jug”, and a which were “water “an honest and Black to be conscientious allegedly by found his bedroom. officers in probation The individual”. officer also con- This issue the has been waived because good “to siders Black be a for candidate appellant “failed action to take whatever probation on his employment based stable reasonably or nul prevent available to record the absence of and criminal lify effect”, any, the harmful record.” The trial court found Mr. 36(a). Tenn.R.App.P. error. The citizen, objection, good not contemperaneous did make a “has been a has worked got tings He’s long Sentencing time. some to be nal Reform Act of 1982 is to [sic] for him.” said the fair and consistent treatment “[a]ssure by eliminating unjustified of all defendants age was nineteen years Jenkins when disparity sentences.” T.C.A. 40-35- § completed arrested. He the elev- 102(2). justification Since there is no grade leaving before enth school to seek disparity imposed the sentences employment. He later received his GED. court, disparity be elim- should Jenkins has been employed since November inated. cook, cashier, dishwasher, of 1981 as a and presently is doffer opinion with a textile mill. He It is the of this Court that the record, prior enjoys length has no criminal an of Black’s should sentence be re- (1) reputation community. (3) excellent His years year duced from three to one neighbors working consider him “a hard to conform to sentence. Jenkins’ See young 40-35-402(c)(2) man who has been known to cause T.C.A. While offense § probation prepar- no trouble.” officer felony, and subject is to be served in the ing presentence report Jen- Corrections, concluded Department of the actual “appears to be a good kins candidate for confinement, place of Black’s like the sen- probation.” Jenkins, tence of be served in will County Depart- Cocke Jail rather than the present mitigating There are factors originally ment of Corrections as ordered applicable which are to both Black trial court. See T.C.A. 40-35- § appellants’ Jenkins. The criminal conduct 311(a). This modification of sen- nor neither caused threatened serious bodi- disparity original- tence eliminates the that ly 40-35-110(1). injury, ap- T.C.A. § ly existed and will assure fair consist- pellants contemplate their did that appellants ent treatment of conformi- criminal conduct cause or threaten ty purposes the Act. with T.C.A. bodily injury. 40-35- serious T.C.A. § 40-35-102(2). Both Black and Jenkins § Also, 110(2). do not have a eligible immediately Shall be for work re- prior history of arrest conviction for or status, lease, furlough, trustee related 40-35-110(13). criminal offense. T.C.A. § programs. rehabilitative 40-35- present There are no enhancement factors 311(b)(1). on the face of the record. did not state his reasons sentencing The first which must be issue refusing suspend sen- is addressed of the sentences placing proba- tences and on imposed by the trial At the sentenc- court. appears tion. It from the comments made ing hearing “The judge stated: hearing the trial court at age. is The court only real difference (a) probation was denied because perceives no real difference between in their Later, appellants were untruthful addressing two of them.” when *7 (b) testimony Jenkins, the deterrent effect the “I don’t observed: leader, probation might upon your I denial of daddy know whether was the However, sentencing County. citizens of Cocke Either these think he was.” when grounds deny sentenced is appellants, the trial court sufficient to years in the probation. Black to serve a term of three Department of and sentenced Corrections sentencing During the course of the year in the Jenkins to serve a term of one hearing court observed: “We’ve actual Department of Corrections got problems County. in chronic Cocke place Coun- of confinement the Cocke advertizing across the Got all [sic] ty Jail. capital marijuana this is the [sic] I (3) world. I believe that. know year don’t imposition of a three any under more than (1) year sen we’re surveillance sentence for Black and one found, is county. anything in other upon for Jenkins the facts That tence based got in always newspaper. of the We’ve justified. evidence cannot be One it’s advertizing problem [sic], but it is a express purposes of Tennessee Crimi- lot
535
all over....”
[Emphasis
From
and conviction
deter them. The trial
will
added]
gather
trafficking marijua-
in
apparently
opinion
this we
that
court is
of the
that traf-
problem
County
is no more a
in
ficking
particular
na
Cocke
in
is not a
any
county
Thus,
is in
other
problem
County.
than it
of this State.
in
the denial
Cocke
However,
are
in
probation
there
no facts
the record
in this
is not neces-
instance
support
sary
which
the statement made
conduct of others in the
deter the
Michael,
v.
trial court.
See State
community.
629
13,
(Tenn.1982)
S.W.2d
14-15
not think
We do
that the trial court
During
sentencing hearing the trial
justified
denying
in
appellants pro
jury
stated: “The
... did not believe
ground.
bation on this
all,
Mr.
Black at
did not believe a
[Edward]
a trial
may deny probation
Before
court
thing
They
guilty.
he said.
found him
deterrence,
ground
there must be
testimony.
There were contradictions
some evidence in the record “that the sen
It
testimony
was unreasonable
on it....
imposed
tence
will have a deterrent effect
testimony
gun,
about the stock on the
[T]he
Horne,
State v.
jurisdiction.”
within the
jury
and so
forth was incredible.
186,
612 S.W.2d
187 (Tenn.Crim.App.1980);
jury
didn’t believe that. The
found that
Vance,
287,
(Tenn.
State v.
626
S.W.2d
290
you
you
lied to them. That both of
lied.
addition,
In
Crim.App.1981).
the Tennes
why they
That’s
returned this ...
Sentencing
see Criminal
Reform Act of
that,
to find
and did find that. There was
requires
1982
imposed by
that
sentence
justification
jury
abundant
for the
mak-
a court must be based on
con
ing
addition,
finding.”
In
the testimo-
tained
the record of the trial and sen
ny
witness,
appellants’ key
tencing hearing
presentence report.
or the
Black,
also
incredible. His
40-35-210(d).
This rule is reason
impeached in many respects;
and it
marijuana trafficking
able.
If
par
was a
was unbelievable.
problem
County,
ticular
in Cocke
the State
presented
could have
a law enforcement
An accused’s truthfulness at tri
v.
officer to relate
See State
sentencing hearing
permissible
this fact.
al
or a
is a
McColgan, 631 S.W.2d
151,
(Tenn.
156
factor for a court to consider when deter
Crim.App.1982),
mining
probation.
sheriff testified “his
See State v.
the issue of
[local
Neeley,
county
problem
drug
48,
(Tenn.1984);
had a real
with
traffic
678
49
S.W.2d
Bunch,
property
(Tenn.
and traffic in stolen
State v.
and that re
646
158
S.W.2d
Lewis,
quiring
v.
1983);
to serve his sentence
State
641
517
S.W.2d
Morton,
State v.
activity”],
would deter others from
(Tenn.Crim.App.1982);
criminal
White,
and State v.
(Tenn.
666,
(Tenn.Crim.App.1982).
649
598
S.W.2d
639 S.W.2d
669
Crim.App.1982),
judice
sheriff testified that
In the case sub
should
[local
“the
See
probation
ground.
defendant’s incarceration would deter
denied
on this
be
Bunch, supra;
Bowden,
v.
like crimes and made reference to the nu
State
State
(Tenn.Crim.App.1983);
merous worthless check
oc
violations that
656 S.W.2d
Poe,
(Tenn.
State v.
County”].
judges
curred in Lincoln
If trial
permitted
Crim.App.1981).
were
assume facts not
imposed
record or base a sentence
on extra
Jenkins’ conviction for the offense of
facts,
impossible
neous
it would be
for this
possessing
is
sawed-off
reversed
Court to review
issues.
and dismissed. The
convictions
*8
possessing marijuana
In addition to the absence of
in for the offense of
evidence
record,
opinion
this Court is of the
the with intent to sell is affirmed. The sen-
probation
is
de-
of Black is modified and reduced
necessary
denial
to
tence
to
(1) year
Department
presentence report
ter the
term of one
place
the actual
of con-
indicates the
have lived honest Corrections with
County
the Cocke
Jail.
employment;
lives and maintained constant
finement
and their involvement in
traf- Both Black and Jenkins shall be immediate-
release, furlough,
ficking
ly eligible
is a recent
arrest
for work
trust-
venture. Their
status, and related
pro-
ee
rehabilitative
kind of evidence
go
long way
would
40-35-311(b)(l).
grams. T.C.A.
supporting
finding
§
judge,
of a trial
make
prohibit
it essential
appli-
CORNELIUS, JJ.,
BYERS and
notice,
judicial
cation of
the trial court
concur.
Court,
and this
of facts which are known
presence
reason of the
multiple
cases
BYERS, Judge, concurring.
particular
of a
kind on the docket of the
my
I
colleagues
affirming
concur with
not, therefore,
I
courts. would
read Home
drug
dismissing
convictions and in
so restrictively.
Vance
charge
going
I
armed.
further concur
Neither
I
suggestion
with them in
do concur with the
the sentence fixed for the
40-35-102(2)
not,
gives weight
defendant
that T.C.A.
Edward Black.
I do
how-
ever,
comparative
particular
subscribe to the
sentences
statements
between
majority opinion dealing
parity
defendants. Absolute
in sentencing
with the level of
required
required by
general
is not
purposes
show a deterrence
passing
probation.
Sentencing
factor in
on
Reform Act. See State v.
Moss,
Leonard
fact that a crime is enough require probation a denial of on the basis of I deterrence. do not believe
either decision makes such es- finding. Although sential for such a