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State v. Scott

Court of Criminal Appeals of Tennessee, Jackson

January 10, 2018

STATE OF TENNESSEE
v.
KENNETH BERNARD SCOTT

          Assigned on Briefs October 3, 2017

         Appeal from the Circuit Court for Henderson County No. 15065-2 Donald H. Allen, Judge

         The Defendant, Kenneth Bernard Scott, was convicted by a Henderson County jury of the sale and delivery of less than .5 grams of cocaine, a Class C felony, and two counts of the sale and delivery of .5 grams or more of cocaine, a Class B felony, and was sentenced by the trial court as a Range II, multiple offender to an effective term of sixteen years in the Department of Correction. The Defendant raises two issues on appeal: (1) whether the trial court erred by allowing laboratory reports into evidence without the testimony of the technician who conducted the testing and prepared the reports; and (2) whether the trial court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.

          Samuel W. Hinson, Lexington, Tennessee, for the appellant, Kenneth Bernard Scott.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Jody S. Pickens, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         This case arises out of a series of controlled drug purchases that were made from the Defendant by a confidential informant who was working with the Henderson County Sheriff's Department, which resulted in the Henderson County Grand Jury's return of a six-count indictment against the Defendant. Counts one and two charged the Defendant with the August 11, 2014 sale and delivery of .5 grams or more of cocaine, counts three and four with the August 13, 2014 sale and delivery of .5 grams or more of cocaine, and counts five and six with the August 14, 2014 sale and delivery of .5 grams or more of cocaine. At the jury trial, the State presented four witnesses: the two Henderson County Sheriff's Department investigators who arranged and monitored the controlled drug purchases, the confidential informant who made the purchases, and a Tennessee Bureau of Investigation ("TBI") scientist who prepared one of the laboratory reports and reviewed the two others. The Defendant elected not to testify and did not present any witnesses. Following deliberations, the jury convicted the Defendant of the indicted offenses in counts three through six and of the lesser offenses of the sale and delivery of less than .5 grams of cocaine in counts one and two. After merging the sale and delivery counts that occurred on the same dates, the trial court sentenced the Defendant as a Range II, multiple offender to concurrent terms of eight years for the Class C felony and to sixteen years for each of the Class B felonies, for an effective sentence of sixteen years in the Department of Correction. Thereafter, the Defendant filed a timely notice of appeal to this court.

         ANALYSIS

         I. Admission of Laboratory Reports

         The Defendant contends that the trial court erred by allowing the State to admit the TBI laboratory reports of the substances he sold to the confidential informant. Of the three laboratory reports admitted at trial, one was prepared by a State's witness, TBI Special Agent Forensic Scientist Brock Sain, and two were prepared by a former TBI special agent forensic scientist, Shalandus Garrett, who did not testify at trial. The Defendant argues that the admission of the two reports without the testimony of the TBI analyst who prepared them violated the confrontation clause and the rule against hearsay. He further argues that the reports constituted expert opinion testimony for which the State failed to lay a proper foundation, in violation of Tennessee Rule of Evidence 702. The State argues that: the Defendant waived his Rule 702 objection by not objecting on that ground at trial or in his motion for new trial; the documents were properly admitted as business records under the hearsay exception contained in Tennessee Rule of Evidence 803(6); and the admission of the reports did not violate the Defendant's rights under the confrontation clause because, under the test set out in State v. Hutchison, 482 S.W.3d 893, 910-11 (Tenn. 2016), they carried no "indicia of solemnity" and did not serve "the primary purpose of accusing a targeted individual."

         As an initial matter, we agree with the State that the Defendant has waived his Tennessee Rule of Evidence 702 objection for failure to raise it at trial or in his motion for new trial. See Tenn. R. App. P. 36(a) (providing that the failure to make a contemporaneous objection waives the issue on appeal); Tenn. R. App. P. 3(e) (providing for waiver of issues not specifically stated in a motion for new trial). At trial, defense counsel objected to the admission of the records on two grounds only: that they constituted inadmissible hearsay that did not legitimately fall under the business records exception because they "were prepared specifically for evidence at trial"; and that the two reports prepared by the TBI analyst who was not present at trial violated the Defendant's right to confront the witnesses against him. In fact, defense counsel specifically informed the trial court that he had no questions regarding Agent Sain's qualifications and had no objections to his being accepted as an expert witness. Accordingly, the Defendant has waived his objection to the evidence on this ground.

         We further agree with the State that the trial court did not err in ruling that the records fell within the business records exception to the rule against hearsay. Tennessee ...


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