Court of Criminal Appeals of Tennessee, Nashville
Session June 18, 2019
from the Circuit Court for Dickson County No. 22CC-2016-CR-53
David D. Wolfe, Judge.
Defendant, Matt D. Polk, was convicted of one count of the
sale of 0.5 grams or more of cocaine and one count of the
sale less of than 0.5 grams of cocaine. The Defendant
received an effective sentence of twenty-five years. On
appeal, the Defendant argues that a video recording was not
properly authenticated and that the trial court erred in
allowing an expert who had not been disclosed to the defense
prior to the day of trial to testify. We conclude that the
recording was properly authenticated and that the trial court
did not abuse its discretion in permitting the testimony, and
we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Leonard G. Belmares, II, Dickson, Tennessee, for the
appellant, Matt D. Polk.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Assistant Attorney General; W. Ray
Crouch, District Attorney General; and Joseph C. Hall, Sr.,
Assistant District Attorney General, for the appellee, State
Everett Williams, P.J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr.,
EVERETT WILLIAMS, PRESIDING JUDGE.
AND PROCEDURAL BACKGROUND
Drug Task Force for the Dickson County Sheriff's
Department conducted two separate controlled buys from the
Defendant using a confidential informant. Count one of the
indictment alleged that on July 17, 2015, the Defendant sold
less than 0.5 grams of cocaine, a Schedule II controlled
substance. Count two of the indictment alleged that on August
26, 2015, the Defendant sold 0.5 grams or more of cocaine. At
trial, the Defendant argued that a casual exchange between
two friends, rather than a sale, occurred.
Chris Freeze with the Drug Task Force testified that on July
17, 2015, the confidential informant met with the Defendant
at a residence for the purpose of purchasing crack cocaine.
Agent Freeze and Agent Ronnie Moran recorded the confidential
informant's transaction with the Defendant using a video
recording device, through which they were able to monitor the
audio portion of the transaction as it took place. During the
direct examination of Agent Freeze, the State played the
video recording of the July 17, 2015 transaction. After
playing a portion of the video recording, the prosecutor
asked Agent Freeze if he recognized the video, and he
responded, "Like I said, it's been a while since I
have watched it, but yes, I do recognize that as being one of
the tapes that we would have had."
video showed the confidential informant in her vehicle
driving to a residence. When the confidential informant
parked her vehicle at the residence, a male voice asked why
she was there. The confidential informant told the man that
she was "looking" and that she was "needing
something bad." At that point, the confidential
informant exited the vehicle and stood in the yard with an
African-American man, who was later identified by the
confidential informant as the Defendant. The confidential
informant told the man to "hook [her] up with something
real good." The Defendant asked her if she knew anyone
who took morphine. The Defendant told her it would take
fifteen to twenty minutes for someone to bring the drugs.
Throughout the encounter, the confidential informant
repeatedly asked how long it would be until the drugs
arrived. The Defendant then asked the confidential informant
to follow him. She followed him into the tree line to a red
and white tent, and both the confidential informant and the
Defendant entered the tent.
leaving the tent, the confidential informant spoke to another
African-American man who was sitting under a carport. The
Defendant said "fifteen minutes." The confidential
informant asked, "Is it going to take him the whole
fifteen minutes to get here." The Defendant walked into
the house, and the confidential informant walked back to her
vehicle and said, "[H]e has someone bringing it.
It's going to take a minute." The video ended
abruptly while the confidential informant was talking to the
Defendant about an upcoming court date.
the recording was played to the jury, defense counsel
objected on the basis that Agent Freeze did not testify that
"he participated in the recording, that he assisted in
the recording, he was present at the recording or anything of
that nature." The trial court overruled the objection,
finding that Agent Freeze "identified it as one of the
tapes that he had reviewed." Agent Freeze testified that
he could not see the confidential informant after her car
pulled into the driveway but that he and Agent Moran listened
to her interaction with the Defendant as it was ...