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holding that judicial commissioner remaining active after term expired could issue valid search warrant
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No. 87-83-III
Opinion Filed: February 11, 1988. September Session, 1987.
Appealed from Williamson County, Honorable Elmer Davies, Judge, C.C.A. No. 87-83-III. (Simple Possession of Cocaine and Felonious Possession of Cocaine).
AFFIRMED — As to James Robert Sutton and Christopher R. Balm.
REVERSED AND DISMISSED — As to Rebecca Bexley Keen and James Ross Setter.
For Appellants-Defendants Sutton and Bolin: Patricia E. Meares, P.O. Box 536, Maryville, Tennessee.
For Appellants-Defendants Bexley, Keen and Setter: William Don Young, Jr. P.0. Box 708, Franklin, Tennessee.
For the Appellee: W. J. Michael Cody, Attorney General of Tennessee, Nashville, Tennessee.
Charles E. Bush, Assistant Attorney General of Tennessee, Nashville, Tennessee.
Joseph D. Baugh, District Attorney General, Franklin, Tennessee.
O P I N I O N
The defendants, Rebecca Bexley Keen, James Robert Sutton, and Christopher Richard Bolin were convicted of felonious possession of over thirty grams of cocaine with intent to sell, and each was sentenced to a Range I sentence of thirty-five (35) years in the Department of Correction. Each was also fined the sun of $75,000. The defendants, James Robert Bexley and James Ross Setter were convicted of simple possession of cocaine and each of these defendants was sentenced to serve a workhouse sentence of eleven (11) months and twenty-nine (29) days and fined the sum of $1,000.
We note that while this case was pending on appeal defendant Bexley died, and by order of this Court his case has been abated.
Defendants Keen, Sutton, Bolin and Setter raise a number of issues in this appeal which they argue should merit reversal of their convictions. Some of the issues are raised individually by one or more of the defendants; other issues are common to all of the defendants. For reasons stated later in this opinion, we affirm the trial court's judgments concerning Sutton and Balm, but we reverse the convictions of Keen and Setter and the charge against each of them is dismissed.
Initially, we consider the evidentiary assignment raised by Bolin, Keen and Setter, bearing in mind that Bolin and Keen were each convicted of felonious possession of over thirty grains of cocaine with intent to sell and that Setter was only convicted of simple possession of cocaine. These three defendants argue that the evidence is insufficient to establish their guilt beyond a reasonable doubt. Defendant Sutton has raised no issue regarding the sufficiency of the evidence.
The record shows that during the early morning hours of October 26, 1985, officers assigned to the Rutherford County Narcotics Unit arrested Kenneth Albert in Rutherford County and seized approximately thirty grams of cocaine. Albert advised the officers he had obtained the cocaine from a residence in Williamson County and he gave the officers instructions on how to reach the residence.
Detective Allen Hale of the Rutherford County narcotics Unit contacted the Williamson County Sheriff's Department, and the two agencies agreed to cooperate in the investigation. A search warrant was issued to Fred Bennett, a Williamson County Deputy Sheriff, for the search of the residence. The search warrant was issued by James C. Tanksley, a judicial commissioner, on the morning of October 26, 1985. The search warrant was executed and returned on the date it was issued.
When the officers entered the residence James Robert Sutton was on the couch in the living room. The officers made a cursory or sweep search of the residence for other people. All of the individuals found in the dwelling were brought to the living room for security reasons.
In the living room officers confiscated a machine used to grind cocaine, a brass container with cocaine inside, and a small straw used to ingest cocaine through the nose. These items were discovered under the cushions of the couch where Sutton was lying when the officers entered. A notebook containing initials, figures, and a total was found on a table in the living room. An officer surmised the notebook contained notations concerning drug transactions. A search of Sutton's bedroom revealed a set of triple beam scales and weights, which are commonly used to measure narcotics, ziploc sandwich bags which are used to package drugs for sale, a pipe designed to smoke cocaine, and a covered bowl containing 56.2 grams of cocaine. In addition, $3,101.00 was found beneath the mattress.
Christopher R. Bolin was asleep in a second bedroom when the officers arrived to execute the search warrant. Officers found a loaded pistol on a chair beside the bed and either a shotgun or a rifle behind the bedroom door. There were both men's and women's wearing apparel scattered about the room. No officer described the women's apparel, the nature of the clothing, or the quantity or number of garments present. Luggage was also found in the room. officers seized a small envelope containing a trace of cocaine, $1,600.00 in currency from Bolin's wallet, an additional $1,600.00 from Bolin's boot, and $650.00 in currency from the top of a dresser or chest of drawers.
James Robert Bexley and James Ross Setter were asleep in a third bedroom when the officers arrived to execute the search warrant. officers found a shaving kit on top of a dresser and a hat resting on top of the shaving kit. The hat contained a cocaine preparation kit. Inside the cocaine kit were keys, $215.00 in currency, a folded paper containing cocaine, a small bag containing several miscellaneous pocket items, and Bexley's driver's license. The shaving kit contained $80.00 and Setter's drivers s license.
The record is practically silent as to MS. Keen's whereabouts at the time the search warrant was executed. Only through deductive reasoning can one conclude that she was in the bathroom when the officers arrived. However, the witness who established this fact did not have actual knowledge, but relied upon statements apparently made by other officers. Nor was she identified by any of the witnesses presented by the State. The only references in the record applicable to Keen include remarks such as "all the defendants" or "everyone seated at this table." No officer testified that they arrested Ms. Keen. However, the officers found two items of correspondence from Associated Pathologists of Nashville addressed to Becky Keen in care of Dwayne Tanner. It appears that Associated Pathologists made an analysis of a pap smear on April 9, 1985. The letters are postmarked July 10, 1985, and July 31, 1985. A note was found, dated "WED. p.m. 12:00" addressed to a person named "Gerald." The note is signed "Becky." While the officers were present a telephone call was made to the residence. The caller was identified as "Gerald" and the caller requested to speak to "Becky." The person indicated that he would call back later.
Sutton told the officers the property was owned by Dwayne Tanner, and he, Sutton, lived in the dwelling. He acknowledged that the bedroom, where the bulk of the narcotics were confiscated, was his room and he asked the officers to permit him to take responsibility for the cocaine, stating: "let me be responsible and let the others not be responsible." As stated above, the cocaine grinder, straw and brass container with cocaine inside were found under the cushions of the sofa where Sutton was lying when the officers entered the dwelling.
When a defendant challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the evidence adduced at trial is sufficient "to support the findings by the trier of fact of guilt beyond a reasonable doubt." T.R.A.P. 13(e). This rule is applicable to findings of guilt based upon direct as well as circumstantial evidence. Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895 (1961).
In determining the sufficiency of the evidence we do not reweigh or reevaluate the evidence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Nor may we substitute our inferences for those drawn by the trier of fact in circumstantial evidence cases. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, we are required to afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. State v. Grace, supra. In Grace our Supreme Court said: "A guilty verdict by the jury, approved by the trial judge, accredits the testimony for the State and resolves all conflicts in favor of the theory of the State." 493 S.W.2d at 476.
A criminal offense may be established exclusively by circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); State v. LeQuire, 634 S.W.2d 608, 614 (Tenn. Cr. App. 1981). However, before a defendant may be convicted of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant . . . ." State v. Crawford, 225 Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, "[a] web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury could draw no other reasonable inference save the quilt of the defendant beyond a reasonable doubt." Id. at 484, 470 S.W.2d at 613.
Before an accused may be convicted of possessing a controlled substance with the intent to manufacture, distribute or sell, the State must prove beyond a reasonable doubt the substance was a controlled substance and the accused possessed the substance with the intent to manufacture, deliver or sell the substance. T.C.A. § 39-6-417(a) (Supp. 1987). In the present case, the State established beyond a reasonable doubt the white powder found in the residence as cocaine, a Schedule II controlled substance. The questions we must resolve are whether the State proved beyond a reasonable doubt that Bolin and Keen possessed the cocaine with intent to sell and that Setter possessed the cocaine, he being convicted of simple possession.
The term "possession" as used in T.C.A. § 39-6-417(a) Supp. 1987), embraces both actual and constructive possession. State v. Williams, 623 S.W.2d 121, 125 (Tenn. Cr. App. 1981).
When contraband is found on the premises owned or in the possession of a person, a rebuttable inference arises that the person who owns, or is in possession of the premises, owned and possessed the contraband. State v. Ash, 729 S.W.2d 275, 280 (Tenn. Cr. App. 1986); Armstrong v. State, 548 S.W.2d 334, 336 (Tenn. Cr. App. 1976). When two or more people are living on the premises, and occupy the premises jointly, the inference arises as to both occupants. See Armstrong v. State, supra. However, the mere presence of a person in an area where drugs are discovered is not, alone, sufficient to support a finding that the person possessed the drugs, State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Cr. App. 1987); or the mere association with a person who does in fact control the drugs or property where the drugs are discovered is insufficient to support a finding that the person possessed the drugs. Id. As we stated in Cooper:
Before a person can be found to constructively possess a drug, it must appear that the person has "the power and intention at a given time to exercise dominion and control over . . . [the drugs] either directly or through others." In other words, "constructive possession is the ability to reduce an object to actual possession."
736 S.W.2d at 129. (citations omitted).
Regarding Bolin's challenge to the evidence, we are satisfied that it is sufficient to support the jury's finding that he was guilty of felonious possession of cocaine. The evidence was sufficient to authorize the jury to find that he jointly occupied the premises with Sutton, thus giving rise to the inference that he possessed the contraband. Balm occupied one of the bedrooms, weapons were found in his room, one being a loaded pistol found on a chair beside the bed, a large amount of money was found in his bedroom, and a small envelope containing cocaine was found on the dresser in his room. This evidence. along with all of the other evidence clearly warranted the jury in finding that he was in joint possession with Sutton of all the cocaine found in the house, and that he was acting in concert with Sutton in this drug operation.
As to Keen's and Setter's complaint about the evidence we are of a different view.
As we have indicated earlier, the evidence reveals that the premises in question were owned by a Dwayne Tanner who apparently was hospitalized out-o-state and was not present when the search warrant was executed, and Sutton lived in and occupied the premises with Tanner. There is no evidence contained in the record that any of the other defendants resided there except Bolin.
The record clearly establishes that all of the drugs were hidden from view. The cocaine in Sutton's bedroom was hidden in a tupperware container with a lid securely attached. The triple beam scales found in that bedroom were hidden from view and the money was under the mattress. The cocaine and paraphernalia found in the living room were hidden under the cushions of the sofa. Bexley's cocaine was secured in a closed kit. Thus, neither Keen nor Setter could have known of the existence of the cocaine unless they were told of its existence, conducted a search of the premises themselves, or purchased the cocaine. However, there is absolutely no evidence, direct or circumstantial, contained in the record which supports any of these suppositions.
As to Setter, the record is void of any evidence that he jointly occupied the premises with Sutton, or that the drugs were in a common area and visible, or that any drugs were in his room that could be attributable to him. Other than his shaving kit being present, there was no other evidence that the premises served as his residence or that would indicate that he was in possession of the premises. As we read the evidence, the only cocaine found in the bedroom where Setter was located belonged to and was possessed by Bexley. The presence of Setter's shaving kit, which only contained a modest sum of money and his driver's license, cannot by itself, serve to show that he was a joint occupant of and in possession of the premises.
We are of the opinion a reasonable trier of fact could not conclude from the record transmitted to this Court that setter was guilty of simple possession of cocaine beyond a reasonable doubt. Jackson v. Virginia, 437 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Davis v. State, 577 S.W.2d 467 (Tenn. Cr. App. 1979). Setter's mere presence in the residence or association with Sutton and Bolin, either singularly or together, without more, is insufficient to support a finding that setter constructively possessed cocaine. As we stated in Cooper:
It has long been the rule in this State that a conviction for a criminal offense may not be based solely upon conjecture, guess, speculation, or a mere possibility. Rucker v. State, 174 Tenn. 569, 129 S.W.2d 208 (1939). And this Court is not permitted to "speculate upon the guilt of one charged with the commission of a criminal offense." Clancy v. State, 521 S.W.2d 780, 781 (Tenn. 1975).
As to Keen, there is a modicum of evidence that she night have lived in the residence. One can conclude by deductive reasoning, as we have mentioned, that she was in the bathroom when the officers arrived. However, no officer who testified indicated that he arrested Keen. The officer who indicated she was in the bathroom did not have personal knowledge of this fact. There is evidence that women's wearing apparel was found in Bolin's bedroom. However, as we noted, no one described the clothing, the number and nature of the garments, or whether the garments would even fit her. The record is void of any evidence that women's clothing was found in a closet or a drawer in the residence. To the contrary, there was luggage in this room. The only drug found in the room was a trace of cocaine in a very small envelope. Contrary to the argument of the State, the cocaine preparation kit was found inside a hat in the Bexley-Setter bedroom.
There is no evidence in the record as to when Keen arrived at the residence. Besides the presence of women's wearing apparel in the residence and her apparent presence in the bathroom when the warrant was executed the only evidence which connects Keen to the residence are two statements from Associated Pathologists addressed to Becky Keen in care of Dwayne Tanner. These statements establish Keen's presence on or about April 9, 1985, in Williamson County. The fact that envelopes dated July 10, 1985, and July 31, 1985 were found does not mean that she was in Williamson county on those dates. The note to Gerald does not have a date. It is unknown when this particular note may have been written. Keen did receive a phone call from Gerald while the search warrant was being executed, but it is reasonable to conclude that she may have advised Gerald of her sojourn to Williamson County prior to coming or called after she arrived.
As we have stated, there is a modicum of evidence that Keen might have been residing at the residence, but we are of the opinion that a reasonable trier of fact could not conclude from the record that Keen was guilty of the possession of cocaine with the intent to sell beyond a reasonable doubt. Jackson v. Virginia, supra, Davis v. State, supra. Again, her presence or association with Sutton and Bolin, either singularly or together, without more, is insufficient to establish that Keen constructively possessed the cocaine. In other words the facts and circumstances contained in the record are not "so closely interwoven and connected that the finger of guilt is pointed unerringly at the defendant" Keen. State v. Crawford, 225 Tenn. at 484, 470 S.W.2d at 613.
Next, the defendants contend that the search warrant issued by the judicial commissioner was invalid because the term of the commissioner'S appointment had expired. Consequently, the defendants argue, the commissioner did not have the requisite authority to issue the search warrant. The State contends the judicial commissioner was acting as a holdover or de facto commissioner, and the commissioner was authorized by law to issue the search warrant. The trial judge found the judicial commissioner was a holdover in office and possessed the requisite authority to issue the search warrant. We agree with the trial court.
While the State does not challenge the right of the defendants, Rebecca Bexley Keen and James Ross Setter, to contest the validity of the search warrant, we note that the trial judge found these two defendants did not have an expectation of privacy in the premises searched. A review of the transcript of the suppression hearing supports the finding of the trial court. Neither defendant offered any evidence whatsoever regarding their expectation of privacy in the premises. Thus, they cannot challenge the validity of the search warrant in this Court. At any rate, their complaint about the search warrant is of no significance in view of the ruling we must make reversing their convictions.
The trial judge found that the defendants James Robert sutton and Christopher Richard Bolin had an expectation of privacy in the premises, and he denied their motion to suppress on the merits.
On the 5th day of November 1982, the Williamson County commission appointed James C. Tanksley to the position of judicial commissioner. According to the resolution passed by the Commission, a vacancy had occurred in one of the judicial commissioners positions, and Tanksley was appointed to fill this vacancy. He was appointed to serve a term of two years.
When Tanksley was appointed to the position of judicial commissioner, he was serving as a court officer for a general sessions judge in Williamson County, and he continued to serve in this capacity while serving as a judicial commissioner. However, neither his employment as a court officer nor his employment as a judicial commissioner was considered full-time employment. Mr. Tanksley was compensated for contractual services rendered, and he received one check, the proceeds for which were drawn from separate budgetary accounts. The two budgetary accounts were listed on each check that he received. During the early part of 1984 Tanksley became a juvenile intake officer, a third position.
On July 1, 1985, Mr. Tanksley became the supervisor of the Juvenile Detention Center. This was a full-time position in Williamson County, and Mr. Tanksley was compensated accordingly. His compensation for serving as a court officer and judicial commissioner was terminated by Williamson County as of June 30, 1985.
Tanksley testified he was told he had been appointed to serve a term of four years. He acknowledged that the position of supervisor of the Juvenile Detention Center was a full-time position, and there was a change in his pay. In addition, his compensation was only from a single budgetary fund, a change that he noted when he received his check.
Tanksley testified he thought the check he received contained compensation for both his position as supervisor as well as judicial commissioner. Consequently, he thought and believed that he was a judicial commissioner when he issued the warrant on October 26, 1985. In February of 1986, a question arose concerning his status as a judicial commissioner. He learned for the first time he had only been appointed for a two-year term. He was reappointed as a judicial commissioner on March 17, 1986.
Mr. Billy Giddens, the budget purchasing director for Williamson County, and the person responsible for county personnel and payroll, testified Mr. Tanksley was notified that he had been terminated as a judicial commissioner, and his only employment with the county was that of a detention center officer. Moreover Mr. Tanksley was asked to fill out a form concerning his employment. The only position listed on the form is that of "detention center" as of July 1, 1985. The position of judicial commissioner is not mentioned. The form also contains the salary he was to receive. It is limited to his compensation as supervisor of the Juvenile Detention Center.
In Ridout v. State, 161 Tenn. 248, 30 S.W.2d 255 (1930), the Court explored in depth the question of who may be qualified as an officer de facto. The Court concluded that one who comes into office legally, and who continues to hold possession of the office and continues to exercise the functions and duties of the office after his term of office has expired, is an officer de facto, and the validity of his official acts cannot be questioned collaterally. The Ridout court points out six exceptions to the general rule, and quite clearly none of those exceptions would apply in the present case. See Id. at 270, 30 S.W.2d at 262.
In light of the rule stated in Ridout, the key question in the present case is whether Tanksley continued to act as a judicial commissioner after his two year term expired and continued to act as such up to and at the time he signed the present search warrant on October 26, 1985. His testimony clearly shows that he did.
Tanksley testified that he regularly performed the duties of a judicial commissioner from the date of his original appointment on November 5, 1982, until the latter part of February, 1986, at which time he became aware that his appointment was for only two years and not four years as he had originally believed. He ceased to act then until he was reappointed in March, 1986.
Tanksley further testified that he continued to sign other warrants and instruments in the course of his duties both before and after he signed the present search warrant. We note that there was no evidence that contradicted Tanksley in this regard, and we would add that the trial court, by its ruling, accredited Tanksley's testimony.
Under all of the above, we conclude that Tanksley, at the time he signed the search warrant on October 26, 1985, was a de facto officer and was clothed with sufficient authority to issue the search warrant. His actions were valid.
Further, the defendants contend that the search warrant affidavit is facially deficient so as to render the search warrant void for lack of probable cause. A contention is also made that the affidavit fails to show any indication of reliability on the part of the informants.
The affidavit of Detective Allen Hale, dated October 26, 1985, stated that "John Doe, A/K/A Short Legs" was in possession of cocaine at his premises. The affidavit then gave a detailed description and location of the premises to be searched, and then continued as follows:
On October 26, 1985, at approximately 3:00 a.m. Kenneth Albert accompanied by another individual went to the premises described above and obtained approximately one ounce of cocaine from an individual known to him only as "Short Legs." At approximately 4:23 a.m. on October 26, 1985, the affiant along with other Rutherford County law enforcement officers stopped the van that Kenneth Albert was driving at the intersection of Highway 96 and Broad in Murfreesboro, Tennessee. In Kenneth Albert's possession cocaine was found. Kenneth Albert and the other individual was interviewed separately and both gave directions to the house described above as the house where Kenneth Albert got the cocaine. Kenneth Albert confessed to the affiant as to getting the cocaine from the premises described above. In the van was found directions to the above-described premises, copy attached.
(Exh. No. 4).
In State v. Hunt, 665 S.W.2d 751 (Tenn. Cr. App. 1984), this Court quoted from the recent US. Supreme Court decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), wherein the Supreme Court held that the proper standard for evaluating an affidavit in support of a search warrant is the "totality of the circumstances analysis."
The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found at a particular place.
State v. Hunt, 665 S.W.2d at 754 (quoting Illinois v. Gates, 462 U.S. at 239, 102 S.Ct. at 2332, 76 L.Ed.2d at ___; see also, State v. Vela, 645 S.W.2d 765, 767-68 (Tenn. Cr. App. 1982) (citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (affidavits must be interpreted in a common sense and realistic fashion)).
Applying these rules to the affidavit and search warrant in the present case, we conclude that the issuing commissioner properly issued the search warrant.
The allegations in the affidavit were more than sufficient to establish probable cause for the issuance of the search warrant.
Further, the affidavit contains sufficient facts to establish that Kenneth Albert was reliable.
The affiant was informed by Albert that the cocaine in his possession came from the premises searched. Albert and the other individual who was with him were separately interviewed by the police and both gave directions to the house where Albert had purchased the cocaine. Also the affidavit shows that Albert purchased the cocaine at approximately 3:00 a.m., and the police obtained the information from Albert at 4:23 a.m. when he was stopped.
Furthermore Albert's statements to the affiant were admissions against his own penal interests, and this provides an additional basis for crediting his tip, since admissions of a crime carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
We find no merit to either issue concerning the search warrant.
All of the defendants contend that the trial court erred in allowing the admission of certain photographs which showed items of evidence such as money and drugs that had been seized from the premises. The defendants argue that these photographs indicated that these items were in plain view when in fact, the items had been hidden from view when found.
We are satisfied from the evidence that the jury was well aware that the photographs did not depict the evidence as it was originally found. These photographs were probative in establishing the appearance of the evidence and to show that the controlled substances were found on the premises even though hidden from plain view. Also the photographs of the money were probative to establish by circumstantial evidence, that one or more of the defendants had possessed the controlled substances for sale. T.C.A. § 39-6-417(a)(2). We see no error.
Another issue concerns the defendants' complaint about detective Hale's testimony. Detective Hale stated that he was informed by Kenneth Albert that Albert had purchased cocaine at the defendants' premises prior to the police raid at those premises. The defendants contend Hale's testimony was hearsay.
The trial court found that the testimony was not hearsay as it was not offered to prove the truth of the matter asserted but rather, merely served to explain the officers' subsequent actions. The trial court gave a cautionary instruction to the jury to this effect.
We agree with the defendants that this testimony was hearsay and should have been excluded. However, the error was harmless, given the trial court's cautionary instruction and the other competent evidence that the defendants possessed a large quantity of cocaine, which by itself allowed the jury to infer that the defendants possessed the cocaine with intent to sell. This issue is overruled.
Keen and Setter complain about the testimony of Detective Hale who testified that Sutton made statements to him to the effect that he (Sutton) wanted to take responsibility for all of the cocaine. We do not interpret Sutton's statements to Detective Hale as implicating either Keen or Setter. This issue is without merit.
Also, we find no merit to Keen's issue concerning the admission of certain documents. These documents were two bills from Associated Pathologists addressed to "Becky Keen," and an undated note that had the name "Becky" on it. These documents were probative in support of the State's theory that Keen was in joint possession of the premises and the cocaine found therein.
Finally, the defendants say their sentences were excessive. In view of our reversal of Keen's and Setter's sentences, we need only address this issue as to Bolin and Sutton. Both of them contend that the trial court erred in sentencing them to Range I sentences of thirty-five (35) years, the maximum Range I punishment possible for the offense of felonious possession of cocaine. The defendants argue that the trial court misapplied the enhancement factors listed in T.C.A. § 40-35-111 (1982).
Pursuant to T.C.A. § 40-35-402(d) (Supp. 1987), we have reviewed this sentencing issue de novo on the record without presuming the correctness of the trial court's ruling.
Several enhancement factors, as enumerated in T.C.A. § 40-35-111 (1982), are present. Both Sutton and Bolin have a history of criminal convictions and behavior. According to his presentence report, Sutton has one prior conviction for possessing marihuana and another one for possessing and delivering marihuana. He served probationary sentences in Florida for these 1972 and 1974 convictions, and subsequent to his commission of the present offense, he was charged in Florida for possessing cocaine. Bolin was convicted in Virginia in 1980 for attempted larceny of an air craft, and his sentence of one (1) year was suspended for two (2) years after serving a sentence of twenty (20) days. His presentence report indicates that he was charged in 1984 in Florida with possessing, with intent to sell eighty-seven grams of cocaine, however the report indicates that the disposition of this charge was "unknown." The presentence reports state that both Bolin and Sutton are regarded by law enforcement officials as having reputations for dealing in illegal drugs. Further, the sale of drugs quite clearly serves to injure and ruin the lives of multiple victims. the defendants' offense demonstrates that they had no hesitation about committing a crime when the risk to human life was high. See T.C.A. § 40-35-111(1), (3) and (10). Additionally, under the circumstances of this case, the record does not show any mitigating factors that would be applicable to these defendants.
From our review of the record, we conclude that a sentence of thirty-five (35) years was an appropriate sentence for each of these defendants.
As to Bolin and Sutton, we find no merit to their issues, and the judgment as to each is affirmed.
As to Keen and Setter, we find the evidence to be insufficient to support their convictions. The judgments as to Keen and Setter are reversed, and the charge as to each is dismissed.
______________________________ Joe D. Duncan, Presiding Judge
CONCUR:
_________________________________ William S. Russell, Special Judge
I agree with my distinguished colleagues that the evidence contained in the record transmitted to this Court is insufficient, as a matter of law, to support the convictions of Rebecca Besley Keen and James Ross Setter. Consequently, I concur in the decision of my colleagues to set aside their convictions and dismiss the respective prosecutions pending against them. However, I cannot agree with their conclusion that James C. Tanksley was a de facto commissioner and authorized to issue the search warrant in question. Therefore, I respectfully dissent.
First, I question the propriety of extending the holdover doctrine to judicial commissioners. I am aware, however, that this Court has extended the doctrine to judicial commissioners. See State v. Larry Eugene Barbee, Robertson County No. 83-47-III, C.C.A. at Nashville, September 1983 Session, opinion filed November 30, 1983. Our Supreme Court denied Barbee's application for permission to appeal, but noted it only concurred in the results reached by this Court.
Judicial commissioners were unknown to the common laws and there were no judicial commissioners in Tennessee until 1978. The Tennessee General Assembly passed legislation in 1978 which created the position of judicial commissioner. T.C.A. § 40-1-111. However, the right to create the position of judicial commissioner is limited to a few counties. T.C.A. § 40-1-111.
The county commission is authorized to create the position of judicial commissioner in those counties where judicial commissioners are permitted; and the commission is empowered to appoint or name the person or persons who shall act as commissioners. T.C.A. § 40-1-111(a)(1). The length of time or term of the judicial commissioner is also established by the county commission. However, the term may not exceed four years T.C.A. § 40-1-111(a)(1). In one county individuals appointed as judicial commissioners are subject to the approval of a majority of the general sessions judges in that county. T.C.A. § 40-1-111(c).
While judicial commissioners are designated as magistrates, see T.C.A. §§ 38-4-101, ["judicial commissioners . . . are magistrates within the meaning of this title [proceedings to keep the peace] . . ."]; 40-1-106, [". . . judicial commissioners . . . are magistrates within the meaning of this title [jurisdiction and venue]"]; 40-5-102, ["[t]he following are magistrates within the meaning of this chapter [matters pertaining to arrest]; (3) judicial commissioners . . ."], they are judicial officers without a court. State v. Bush, 626 S.W.2d 470, 472-473 (Term. Crim. App. 1981). In Bush this Court ruled that the statute establishing the position of judicial commissioner did not create "either an 'inferior' court or a 'corporation' court." See Mengel Box Co. v. Fowlkes, 135 Tenn. 202, 206, 186 S.W.2d 91, 92 (1916). The duties or authority of a judicial commissioner include, but are not limited to, the issuance of arrest warrants, search warrants, and a mittimus, where appropriate. T.C.A. § 40-1-111(a)(1).
As can be seen from the foregoing summary, the position of judicial commissioner exists in a minuscule number of counties in this State, and the terms of the commissioners may vary from county to county as there is no uniform term created by the statute. Likewise, the authority of the commissioner may also vary from county to county since the statute creating the position does not limit the authority of the judicial commissioner. In each instance where the term or authority of a judicial commissioner comes into question, the courts will have to resort to an evidentiary hearing to resolve the issue since the only records concerning these matters are contained exclusively in the records and resolutions of the county commission.
I am of the opinion the holdover doctrine should be limited in its scope to the judges of the general sessions. probate and courts of record of this State, who must stand for election or their retention as a judicial officer is subject to the mandate of the general public. The doctrine should not be extended to include judicial commissioners since they are not judges, their authority is limited, and they are not required to either stand for election or have the general public pass upon their fitness to continue to serve in the capacity of a judicial commissioner. A common law rule, which excludes judicial commissioners from the scope of the holdover doctrine. would have little, if any, effect upon the orderly administration of justice in this State. As hereinabove noted, there are only a handful of counties authorized to create judicial commissioners to serve within the county; and, as a result, the number of judicial commissioners functioning in this State are minuscule in number.
Second, addressing this issue on the merits, I conclude from the evidence that Mr. Tanksley's services as a judicial commissioner were terminated, effective July 1, 1985. Thus, he could not continue to function as a de facto judicial commissioner.
The evidence is not in dispute. Initially, Mr. Tanksley served as a courtroom officer in the general sessions courts of Williamson County. On the 5th day of November, 1982, the Williamson County Commission appointed Mr. Tanksley to fill a vacancy in the position of judicial commissioner. The appointment was for two years, the unexpired term of his predecessor in office. Thus, his term as a judicial commissioner expired on the 4th day of November, 1984. While serving as a judicial commissioner, Mr. Tanksley assumed a third role, a part-time position as a juvenile intake officer.
On July 1, 1985, Mr. Tanksley became the supervisor of the a juvenile detention center, a full-time position in Williamson County; and his services as a courtroom officer and judicial commissioner were terminated by Williamson County. There is ample evidence to support the conclusion that Tanksley's services as a judicial commissioner were terminated. The record reveals:
(a) Mr. Tanksley was notified by the office responsible for personnel and payroll in Williamson County that he had been terminated as a judicial commissioner;
(b) The form which Mr. Tanksley personally completed at the request of the personnel office only listed his position as supervisor of the juvenile detention center and the salary he was to receive as supervisor — the form made no mention of the office of judicial commissioner or any additional compensation he was to receive from Williamson County after June 30, 1985; and
(c) The payroll check received by Mr. Tanksley was different — his salary was paid from one budgetary account while his previous checks contained multiple budgetary account numbers: one representing compensation for his services as a court officer and another representing compensation for his the special judge was a de facto judge when he organized and convened the grand jury on the first: day of the succeeding term. The regular judge was still absent due to illness when the grand jury was organized. In Barbee the judicial commissioners, who were duly appointed, continued to act and be compensated for the services performed until reappointed. In neither case was the judicial officer terminated as Mr. Tanksley was in this case; nor were the salaries of the judicial commissioners in Barbee terminated as Mr. Tanksley's in this case.
If the issue presented to this Court concerned the right of an impeached judge to continue to serve as a de facto judge until his successor was duly appointed or elected, I axes sure my distinguished colleagues would rule the impeached judge could not continue to serve in any capacity. Here, my distinguished colleagues find that a judicial commissioner, whose services were terminated prior to the issuance of a search warrant by the governmental entity that appointed him, can continue to serve in the capacity of a de facto judicial commissioner. In the first instance, the services of the judge are terminated in the manner provided by the Constitution of this State. In the second instance, the services of the judicial commissioner, whose term of office had expired, was terminated by the appropriate governmental official.
As the majority states, the trial court found that the holdover doctrine was applicable to judicial commissioners, and he ruled that Mr. Tanksley was acting as a de facto judicial commissioner when he issued the search warrant in question. While the trial judge's findings of fact are given the weight of a jury verdict, this Court is not bound by the trial court's findings when the evidence contained in the record transmitted to this Court preponderates against the judgment of the trial court. I am firmly of the opinion the facts contained in the record clearly preponderate against the judgment of the trial services as a judicial commissioner — and Tanksley noted and was well aware of this change.
Thus. Mr. Tanksley knew, or should have known, that his services as a judicial commissioner had been terminated by Williamson County; and he no longer had the authority to issue search warrants after June 30, 1985.
As I read the majority opinion, my colleagues reason that Tanksley was appointed to the position of judicial commissioner, he continued to act in this capacity, and, therefore, he was a de facto judicial commissioner when he issued the search warrant in question. I respectfully submit the deduction drawn by my distinguished colleagues rests upon a false premise. They have apparently opted to ignore the overwhelming evidence contained in the record, which is set forth in the majority opinion as well as this opinion, that Tanksley's services as a judicial commissioner were terminated, effective July 1, 1985. Instead. they rely upon the opinion of Mr. Tanksley that he thought he was a judicial commissioner when he issued the search warrant in question. I conclude from a reading of the record that Tanksley's opinion in this regard was predicated upon a figment of his imagination because neither the facts contained in the record transmitted to this court nor the law of this jurisdiction support his conclusion.
The majority opinion cites Ridout v. State. 161 Tenn. 248, 30 S.W.2d 255 (1930), in support of its conclusion that Tanksley was a de facto judicial commissioner. The majority opinion does not make reference to our opinion in State v. Barbee, supra. In my opinion the facts of this case are distinguishable from the Supreme Court's decision in Ridout and this Court's decision in Barbee.
In Ridout a special judge was elected by members of the bar to preside in the absence of the duly elected and presiding judge who was ill. While the special judge's authority to act expired at the end of the term, the Supreme Court ruled that court; and, as heretofore stated, the law of this jurisdiction does not support its conclusion.
I am of the opinion Mr. Tanksley served as a de facto judicial commissioner from the date his appointment expired, November 5, 1984, until the 30th day of June, 1985. the date his services were terminated as a judicial commissioner and the last date he was paid in that capacity. Between July 1, 1985, and March 17, 1986, the date he was reappointed, Mr. Tanksley was not authorized to issue search warrants. Thus, the search warrant issued by Mr. Tanksley on the 26th day of October, 1985, was void ab initio, see Marsh v. State, 185 Tenn. 103, 203 S.W.2d 372 (1947); Steadman v. State, 217 Tenn. 598, 399 S.W.2d 756 (1966); and the trial court should have sustained the motions of the defendants Sutton and Bolin to suppress the evidence seized under color of the void search warrant.
I have serious reservations as to whether Mr. Tanksley was "neutral and detached" when he issued the search warrant in question. As of July 1, 1985, Mr. Tanksley was the supervisor, chief jailer, of the juvenile detention center. In other words, he was a law enforcement officer when he issued the search warrant. It takes very little imagination, mental gymnastics, or deliberations to reach the conclusion that individuals, who serve as juvenile court intake officers, juvenile court detention specialists, or the jailer of any county in this State, are not "neutral and detached" as mandated by both the United States and Tennessee Constitutions.
Before a search warrant is valid, it must be issued by a "neutral and detached" magistrate or judicial officer. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977). See In Re Dender, 571 S.W.2d 491 (Tenn. 1978); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Sd.2d 920 (1979). In other words, the constitutional mandate requires that the magistrate be able to make an independent evaluation of probable cause for the issuance of the warrant, Mancusi v. DeForte, supra Coolidge v. New Hampshire, supra; and the magistrate may not have a personal or professional interest in whether the warrant is or is not issued, Connally v. Georgia, supra. The magistrate may not inject himself so far into the search and seizure process as to become a part of the process. Lo-Ji Sales, Inc. v. New York, supra. See In Re Dender, supra.
I am aware that this issue has not been raised or briefed. However, the appellate courts of this State are empowered to consider an issue which has not been presented for review. Tenn. R. App. P. 13(b). State v. Goins, 705 S.W.2d 648 (Tenn. 1986); State v. Harless, 607 S.W.2d 492 (Tenn. Crim. App. 1980); State v. Maynard, 629 S.W.2d 911 (Tenn. Crim. App. 1981). of course, this was true before the enactment of the Tennessee Rules of Appellate Procedure. See Manning v. State, 500 S.W.2d 913 (Tena. 1973); Johnson v. State, 580 S.W.2d 789 (Tenn. Crim. App. 1978). Moreover, I am of the opinion the fact that the person issuing the warrant in question was not "neutral and detached" constitutes "plain error." This Court may notice "plain error" "at any time, even though not raised in the motion for a new trial or assigned as error on appeal, . . . where necessary to do substantial justice." Texan. R. Crim. p. 52(b). Veach v. State, 491 S.W.2d 81 (Tenn. 1973); State v. Ogle, 666 S.W.2d 58 (Tenn. 1984); Herron v. State, 3 Texan. Crim. App. 39, 456 S.W.2d 873 (1970).
For the foregoing reasons I would set aside the convictions of both Sutton and Bolin and dismiss the prosecutions pending against them.
__________________________ JOE B. JONES, JUDGE