Appeals Court upholds ruling in Carter drug case

By Kathy Helms-Hughes
STAR STAFF

   The Court of Criminal Appeals in Knoxville has upheld the judgment of a Carter County Criminal Court jury which found Paul J. Ward of Hampton guilty on two counts of selling heroin.
   Following a Jan. 14, 2000, trial before Criminal Court Judge Robert Cupp, Ward was sentenced to 11 years on each count, to run concurrently (together). As a Range I standard offender, Ward could be eligible for parole after serving 30 percent of his sentence.
   Johnson City attorney Clifton Corker appealed the decision on Ward's behalf, claiming there was insufficient evidence to justify the jury's finding of guilt beyond a reasonable doubt and submitted that Ward should have been acquitted at the close of proof by the defense and that of Assistant District Attorney Dennis Brooks, who prosecuted the case for the state.
   Corker also maintained that tape-recorded sales transactions were in error because they contained evidence of other bad acts, in violation of Tennessee Rules of Evidence.
   According to the appeal, tape recordings made at the time of sale by a confidential informant contained statements by Ward of other drug sales or purchases.
   Ward was indicted on three counts of sale of a controlled substance and one count of conspiracy to sell a controlled substance. He was found guilty of Counts One and Four, sale of a controlled substance on Aug. 25, 1998, and Aug. 11, 1998, and was acquitted of Count Three, which alleged the sale of a controlled substance on June 16, 1998. Count Two, conspiracy to sell a controlled substance, was dismissed by the state.
   According to testimony presented at trial in Carter County, former agents of the First Judicial District Drug Task Force -- Elizabethton Police Department's Sgt. Brian Fraley and Carter County Sheriff's Department Sgt. Patrick Johnson -- used a confidential informant to purchase illegal drugs from Ward on June 16, 1998. The transaction was to be recorded, using a wire which was placed on the informant. At trial, Fraley testified that agents could not identify Ward visually because they were parked too far away from the vehicle in which the alleged transaction took place. Fraley also testified they could not identify Ward's voice because the transmitting device used by the informant did not work properly. Ward was found not guilty on that count.
   On Aug. 11, 1998, Agents Jesus Pena of Elizabethton Police Department, along with Agent Johnson, again met with the informant who told them he was going to Ward's house to purchase two bags of heroin. The informant was searched, briefed, wired, and given $100 to make the transaction at Ward's house on Swimming Pool Road in Hampton. He was driven to the residence by his wife.
   The informant testified he gave Ward the money and Ward gave him the drugs. Agents followed the informant back to their meeting place and retrieved .3 grams of heroin. Agent Pena testified he was too far away to see the informant enter the residence or make the purchase, however, he identified the voices of the informant and Ward on the tape.
   Although Agent Pena could not say for sure where the drugs came from -- whether from Ward, the informant or the informant's wife -- Ward was found guilty of the charge.
   On Aug. 25, 1998, the same informant was briefed, wired, and given $250 to make another transaction. He again was driven to Ward's residence by his wife while agents parked nearby and monitored the transaction. According to the Appeals Court, there is conflicting testimony regarding how thoroughly the informant was searched. Agent Johnson also testified that the informant's wife was not searched and that he was not sure whether the informant had drugs on him prior to entering the residence.
   The informant testified that there was another person present at the residence to whom he gave the money and then Ward came out of the bathroom and gave him approximately .06 grams of heroin.
   Agent Johnson identified the voices of Ward and the informant on the tape, saying that Ward had a distinctive voice with which he was familiar because he had spoken with him before. Ward did not speak to the jury during trial.
   Johnson also testified that Ward "made conversation about using a sack and also about a boy and girl coming up and getting a sack from him," according to the appeal.
   Though testimony presented at trial sought to undermine the credibility of the informant, who had convictions for DUI and driving on revoked license and previously had perjured himself before other courts, Ward still was found guilty of the charge.
   The Appeals Court stated that while both audiotapes are difficult to understand, on the tape of the Aug. 25 transaction, there was some discussion of a "sack" and two people getting a sack from Ward. On the Aug. 11 tape, during a conversation in which Ward took part, there was mention of a "green pill" for $120. The informant testified the green pill was morphine.
   The Appeals Court said Judge Cupp was correct when he ruled the audiotape admissible as evidence, because it helped provide a complete story of the crime.
   "Although we disagree with the reasoning provided by the trial court's ruling, we conclude the evidence was admissible for other reasons," the Appeals Court stated.
   In affirming the trial court's judgment, the Appeals Court said in Friday's decision: "Because the tapes establish defendant's identity at the time of the sale, opportunity to make the sale, and absence of mistake in the transfer of the heroin to the undercover agent, we conclude the audiotapes were properly admitted ..."