State of Tennessee v. Thelisa Emery and Maurice Emery

Citation: Not availableDocket: W2002-02698-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; March 14, 2004; Tennessee; State Appellate Court

Original Court Document: View Document

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Thelisa Emery and Maurice Emery were convicted in a joint trial for possession with intent to sell over .5 grams of cocaine, possession of marijuana, and possession of drug paraphernalia. On appeal, Thelisa Emery argued that the evidence was insufficient for conviction and that the trial court made several errors, including not severing their trials, allowing testimony about her cocaine use and prior sale, and instructing the jury on her guilt based on criminal responsibility for Maurice's actions. Maurice Emery raised similar issues but was limited on appeal to the sufficiency of the evidence due to his untimely motion for a new trial. The court found no reversible errors and affirmed the trial court's judgments.

The case arose from a police search warrant executed at Thelisa Emery's mobile home, where law enforcement encountered individuals outside and apprehended one, Andrea Huspen, who was found with cocaine and cash. Inside, officers found the defendants and a juvenile, Clifford Woodruff, who had marijuana. The search revealed cocaine and marijuana hidden in a wall fixture, drug paraphernalia in a kitchen cabinet, and evidence suggesting drug transactions had occurred at the residence. Testimony indicated that Maurice Emery facilitated a drug sale to a buyer, with Thelisa Emery involved in the transaction. Despite the absence of drugs on either defendant at the time of arrest, the cumulative evidence led to their convictions.

Woodruff, during cross-examination, acknowledged initially telling officers on December 15, 2000, that he had not seen drugs sold at the Emery residence, but later altered his account on the day of his juvenile court appearance regarding a possession charge. In return for his testimony against the defendants, this possession charge was dismissed. The defendants, Maurice and Thelisa Emery, did not testify. The jury convicted them of possession of cocaine with intent to sell, possession of marijuana, and possession of drug paraphernalia. Maurice Emery received a twelve-year sentence as a multiple offender, while Thelisa Emery received ten years as a standard offender.

Maurice Emery filed an untimely motion for a new trial on December 30, 2002, after the trial court vacated and reentered the judgments of conviction on the same day. According to Tennessee Rule of Criminal Procedure 33(b), motions for new trial must be filed within 30 days, and this timeframe is not extendable. Consequently, the trial court lost jurisdiction to vacate the convictions after 30 days post-judgment on March 25, 2002. Therefore, except for the sufficiency of evidence claim, other issues raised by Maurice Emery cannot be reviewed on appeal.

The appellate review of sufficiency of evidence will apply to both defendants, but remaining appellate issues will only concern Thelisa Emery. The standard for reviewing sufficiency of evidence requires that, when viewed in favor of the prosecution, any rational trier of fact could have found the essential crime elements proven beyond a reasonable doubt. The burden is on the convicted defendants to demonstrate the evidence was insufficient to maintain a guilty verdict. The law prohibits knowingly possessing a controlled substance with intent to sell and using or possessing drug paraphernalia in violation of the law.

The sufficiency of evidence revolves around whether the defendants possessed controlled substances and intended to sell cocaine. Tennessee law allows for both actual and constructive possession, where constructive possession occurs if a person has the power and intention to control the contraband. Mere presence near drugs or association with someone possessing drugs is insufficient for establishing possession.

In this case, evidence indicated that Thelisa and Maurice Emery constructively possessed drugs and paraphernalia. Thelisa resided at the mobile home, and Maurice stayed there occasionally, with evidence pointing to their control over the items found, including a significant amount of crack cocaine. Testimony revealed that they sold crack cocaine shortly before the officers arrived, supporting the conclusion that their possession was with intent to sell.

Thelisa Emery also argued that the trial court erred by denying her motion to sever the trials of the two defendants. However, no written motion or hearing transcript was found in the record, and the trial judge had previously announced the denial of the motion. According to Tennessee Rule of Criminal Procedure 14, a motion to sever must be made before trial, although it can be made during the trial if based on newly discovered grounds. The court generally grants severance to ensure a fair determination of guilt or innocence. The supreme court noted that motions to sever must typically be addressed pre-trial.

In Spicer v. State, the court emphasized that appellate review of a trial court's decision to consolidate offenses focuses primarily on the evidence presented during the hearing, along with the trial court's findings. Regarding Thelisa Emery's appeal for severance from her brother's trial, the record lacks documentation of her pretrial motion, any transcript from the severance hearing, and the trial court’s findings. Consequently, the appellate court found it difficult to assess the claim, presuming the trial court's actions were correct due to the absence of a complete record. Despite Emery’s assertion that the joint trial prejudiced her by allowing the state to argue a conspiracy, the court noted that there was no evidence indicating she was denied a fair trial or that any evidence would have been excluded had the trials been separate. 

Emery also contended that the trial court wrongly admitted two pieces of evidence against her under Tennessee Rule of Evidence 404(b). The first involved testimony about selling cocaine shortly before police intervention, and the second concerned her admission of cocaine use to an officer. Rule 404(b) restricts the use of evidence pertaining to other crimes for character purposes but allows it for other relevant reasons, provided specific conditions are met, including a hearing outside the jury's presence. The appellate court pointed out that the trial court needed to follow these procedures, which were not evident in the record. Thus, the appeals regarding both the severance and the admission of evidence were rejected.

The state contends that Thelisa Emery's sale of cocaine to Brandon Hunt shortly before the police search is significant for establishing her intent to possess cocaine for sale. The court agrees, noting that under Tennessee Rule of Evidence 404(b), evidence of other acts can be admissible if it pertains to a material issue, such as intent, and if its probative value is not outweighed by unfair prejudice. The trial court found that evidence of the recent sale was highly relevant to the issues of possession and intent. Although the court did not explicitly state that the evidence was clear and convincing, it acknowledged testimony from Clifford Woodruff about the sale. The court also assessed the admissibility of a police officer's redirect testimony regarding Emery's admission of using cocaine. Despite objections claiming it was character evidence, the judge ruled it relevant to establish ownership of the cocaine in question. The trial court maintained that the evidence presented a material issue beyond the defendant's character and concluded that its relevance outweighed any potential unfair prejudice. Overall, the trial court's decisions on the admissibility of evidence were upheld, as no abuse of discretion was found.

Thelisa Emery’s residence was found to have drug paraphernalia and cocaine residue, indicating her cocaine use, which she admitted. There was some dispute regarding the officer's accurate reporting of this admission. Emery contended that the trial court made an error by charging the jury on the principle of criminal responsibility without notifying her in the indictment. The state countered that criminal responsibility is merely a method to prove the charged offense and not a separate charge. The court agreed with the state, referencing that an indictment inherently includes all aspects of the offense, including criminal responsibility. The consolidation of the defendants’ indictments sufficiently informed Emery of this theory. Furthermore, there was adequate evidence to instruct the jury on the complicity of both Maurice and Thelisa Emery in the possession of cocaine with intent to sell. The court affirmed that the jury received a complete and correct instruction on the law. Ultimately, the court upheld the trial court's judgments for both defendants and found no errors that would warrant notice of plain error regarding Maurice Emery's case, concluding that the officer’s testimony was not prejudicial to Maurice.