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State v. Davis5/5/1999
The defendant, Jimmy Davis, appeals as of right following his convictions by a jury in the Blount County Circuit Court for two counts of delivering more than one-half gram of cocaine, a Class B felony. He was sentenced for each conviction as a Range I, standard offender to nine years confinement in the Department of Correction, to be served concurrently. He received a fifty-thousand-dollar fine for each conviction. The defendant presents the following issues for our review:
"(1) whether the evidence is sufficient to support his convictions; "(2) whether the trial court erred by refusing to allow cross-examination regarding a confidential informant's use of drugs while on probation; "(3) whether the trial court erred by allowing the jury, during deliberations, to listen to an audiotape of the drug transaction; and "(4) whether the trial court erred by imposing an excessive sentence and by failing to sentence the defendant to probation or community corrections."
We affirm the convictions but remand the case for resentencing.
At trial, Cheryl Denise Androws testified that she contacted the Blount Metro Narcotics Unit (BMNU) in 1996 because she was using cocaine and needed help with treatment. She said that she had convictions for burglary and for writing worthless checks. She said she wanted to do undercover work for the BMNU because she needed money. She said THEthe BMNU employed her to purchase drugs, which she did eight or nine times. She said that she was paid fifty dollars for each transaction. She said she received drug treatment at Cornerstone and is drug-free.
Ms. Androws testified that she knew the defendant by the name Sam and had seen him about sixty times. She said that on September 6, 1996, she called a house on Howe Street and spoke to the defendant. She said she asked the defendant if she could buy cocaine from him, and she arranged to meet him at the house. She said she then called the BMNU and spoke with Agent Scott Johnson. She said she went to the BMNU office where she was wired with an electronic audiotape recorder. She testified that agents searched both her and her car before she was wired. She said she received one hundred dollars with which to purchase the drugs. She explained that the agents followed her to the house on Howe Street, and she went inside the house.
Ms. Androws testified that once inside the house, she talked to the defendant for a while because she wanted to get his full name, and she said the defendant told her his last name was Davis. She said she gave him one hundred dollars, and he gave her five packages of cocaine. She said another man whom she did not know was present during the transaction. She said she then drove to a predetermined location to meet with the agents, and she gave them the drugs. She said that the agents searched both her and her car again. She testified that she was absolutely certain that the defendant was the man who sold her the drugs. She said she later learned that the audiotape had malfunctioned, and the transaction was not recorded. She stated that after the first transaction, she went to the BMNU office and identified a photograph of the defendant.
Ms. Androws testified that on September 17, 1996, she participated in another drug transaction with the defendant. She testified that she went through the same process that she had gone through for the first transaction. She testified that while she was at the house on Howe Street purchasing the drugs from the defendant, someone handed her a marijuana cigarette. She testified that after the transaction, she met with the agents and turned over the marijuana cigarette and the cocaine. She testified that the second transac
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