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Kirk v. State

Court of Criminal Appeals of Tennessee, Jackson

July 29, 2014


Assigned on Briefs June 3, 2014

Appeal from the Circuit Court for Dyer County Nos. 09-CR-291, 10-CR-35, 11-CR-186 Don R. Ash, Senior Judge

Jason R. Creasy, Dyersburg, Tennessee, for the appellant, Milton L. Kirk, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; and Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

Jeffrey S. Bivins, Sp. J., delivered the opinion of the Court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.



Factual and Procedural Background

The Petitioner was indicted by a Dyer County Grand Jury in separate indictments for the following charges: one count each of sale of .5 grams or more of cocaine and sale of cocaine in a drug-free zone in an indictment dated August 10, 2009 ("Case 1"); tampering with evidence, resisting arrest, and evading arrest in an indictment dated February 8, 2010 ("Case 2"); and possession with intent to sell or deliver cocaine in an indictment dated June 13, 2011 ("Case 3").[1] The Petitioner proceeded to trial on January 12, 2011, on the charge of sale of .5 grams or more of cocaine.[2]


At trial, Sergeant Todd Thayer, with the Criminal Investigations Division of the Dyersburg Police Department ("DPD"), testified that his job included supervising the controlled purchases of narcotics. On March 10, 2009, Sergeant Thayer coordinated a controlled purchase of cocaine by a confidential informant named Brenda McElroy. On this day, the target of the controlled purchase was the Petitioner. McElroy believed that the Petitioner drove a red sports utility vehicle. McElroy called a certain phone number and received no answer, but within a minute she received a call from the same phone number. McElroy and the Petitioner arranged for the controlled purchase to occur at the Q-Mart in Dyersburg. After the controlled purchase, Sergeant Thayer met with McElroy and retrieved from her "$50 worth of crack cocaine." Sergeant Thayer stated that, based on his involvement in approximately 800 controlled purchases over the course of his career, $50 typically bought approximately one-half gram of cocaine. He identified at trial the sealed envelope containing the purported crack cocaine.

A video of the transaction was played for the jury without objection. Sergeant Thayer identified the vehicle of the person selling the crack cocaine as "a four door red Chevrolet Blazer." McElroy informed Sergeant Thayer that he would find the vehicle at the Sunrise Motel because the Petitioner was staying there. Accordingly, Sergeant Thayer went to the Sunrise Motel and found the vehicle, which had tags registered to the Petitioner.

Brenda McElroy, a confidential informant for the DPD, testified that on March 10, 2009, she completed a controlled purchase of crack cocaine from the Petitioner. She had known the Petitioner for approximately a year at the time of the controlled purchase. McElroy told the police that the Petitioner would be driving "a red truck, a Blazer." While with the police, McElroy called the Petitioner's cell phone but received no answer. However, shortly after she hung up, the Petitioner called back. She told the Petitioner that she "needed a fifty, " and they agreed to meet at a convenience store close to the hospital. According to McElroy, she did not specify that she wanted to buy crack cocaine, but the Petitioner understood because she "had bought previously from him before." The audio recording of the phone conversation was played for the jury without objection. McElroy identified her voice as well as that of the Petitioner.

McElroy arrived at the convenience store "a minute or two" before the Petitioner. When the Petitioner arrived in "that red truck, " McElroy approached the passenger side of his vehicle. She opened the passenger-side door, retrieved the drugs that were sitting in the passenger's seat, and placed the money in the passenger's seat. McElroy denied that anyone other than the Petitioner was in the vehicle at that time. She described the drugs as "white, little rocks, " which she knew to be crack cocaine from her past use of the drug. According to McElroy, she had not used crack cocaine personally in two years. However, on cross-examination, she agreed that she still was using crack cocaine at the time of this controlled purchase.

Special Agent John Scott, Jr., with the Tennessee Bureau of Investigation ("TBI") Drug Identification Unit, testified as an expert in the field of drug identification. On April 7, 2009, the TBI received an envelope related to the present case. Special Agent Scott identified the envelope previously identified by both Sergeant Thayer and McElroy as the envelope containing the substance acquired from the Petitioner in the controlled purchase. According to Special Agent Thayer's testing and analysis, he concluded that the substance in the envelope was 0.51 grams of a substance containing "cocaine base."

Investigator Shane Anderson testified that he currently worked as one of two evidence custodians for the DPD. On March 10, 2009, Investigator Anderson assisted in a controlled purchase of cocaine by searching the confidential informant's vehicle before and after the purchase. Investigator Anderson also retrieved the sealed evidence envelope pertaining to this case and transported it to the TBI.

At the conclusion of the trial, the Petitioner was convicted of sale of .5 grams or more of cocaine and sentenced to twelve years' incarceration.

Guilty Plea Hearing

The Petitioner subsequently pleaded guilty to tampering with evidence and possession with intent to sell or deliver cocaine. At the guilty plea hearing, the State recited the factual basis for the plea as follows:

[O]n December the 9th of 2009, Patrolman Shawn Crouch of the Dyersburg Police Department made a traffic stop on Christie Street for a seatbelt violation and while he was dealing with the driver he also – well, [the Petitioner] was a passenger in that vehicle that he knew to be currently out on bond for sale of cocaine. As he was dealing with the driver and he also had his canine unit walking it around the truck he began – one of the other officers pointed out [the Petitioner] appeared to have a bulge in his mouth. And he asked [the Petitioner] what it was and he said that he had some kind of abscess and he asked to see it. When he looked inside his mouth he saw what appeared to be a small baggie of cocaine. When he asked [the Petitioner] to get it or to retrieve it, [the Petitioner] took off running and during the chase [the Petitioner] somehow disposed of what was in his mouth and when he was finally taken into custody the officer asked him where – what did you do with the cocaine and he told him it wasn't cocaine, just marijuana. . . .
Your Honor, . . . the new indictment [Case 3], the facts would be that on August 12, 2009, while he was out on patrol Officer Brent Hill of the Dyersburg Police Department was on patrol, he noticed [the Petitioner], and knowing that he had a capias out on him in [Case 1], he knew that we had just indicted him on that case, . . . he took him into custody. And during a search incident to the arrest he found a small amount of cocaine, what turned out to be .3 grams of cocaine in his shoe.

Pursuant to the Petitioner's plea agreement, the trial court sentenced the Petitioner to four years for his tampering with evidence conviction and six years for his possession with intent to sell or deliver cocaine conviction. The Petitioner's tampering with evidence conviction was to run consecutively to his sale of cocaine conviction but concurrently to his possession with intent to sell or deliver cocaine conviction, for a total effective sentence of sixteen years' ...

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