Assigned on Briefs June 3, 2014.
Appeal from the Circuit Court for Tipton County No. 6115 Honorable Joe H. Walker, III, Judge.
Gary F. Antrican, Somerville, Tennessee, for the Defendant-Appellant, Stacy Lee Fleming.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Mike Dunavant, District Attorney General; and Jason R. Royner, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Jeffrey S. Bivins, J., Not Participating.
CAMILLE R. McMULLEN, JUDGE.
This appeal stems from an undercover drug purchase by two informants, Sean and Samantha Newman, and John Thompson, Director of the 25th Judicial District Drug Task Force. This undercover drug purchase led to the arrest and subsequent conviction of the Petitioner for delivery of .5 grams or more of cocaine. This court summarized the underlying facts on direct appeal as follows:
[O]n the night of December 1, 2007, the confidential informants met with Director Thompson and arranged to make a drug purchase. They originally planned to buy drugs from a particular individual, not [the Petitioner], at a gas station. All three of them got into Newman's vehicle and went to the gas station. Newman was the driver, Samantha rode in the front passenger seat, and Director Thompson, dressed in plain clothes, sat in the back seat.
Newman testified that they arrived at the gas station and Samantha immediately recognized [the Petitioner] in a parked vehicle. Newman said [the Petitioner] was in the driver's seat and had a passenger. The passenger got out of the vehicle and walked into the store. Newman said he pulled to the right of [the Petitioner]'s vehicle and began a conversation. Newman asked [the Petitioner] if he had any Xanax bars. [The Petitioner] provided a non-responsive answer. Newman then asked, "What you got on you?" [The Petitioner] held up a bag containing what appeared to be cocaine. He then offered to sell the cocaine for fifty dollars.
Newman asked Director Thompson if he wanted to buy the cocaine. Director Thompson told Newman to make the purchase and he gave Newman fifty dollars. Newman said [the Petitioner] asked about the passenger in the back seat, referring to Director Thompson. Newman told [the Petitioner] that Director Thompson's name was "Little Darrell." Newman testified that he gave [the Petitioner] fifty dollars in exchange for a bag of cocaine. Newman then returned to his vehicle and handed the cocaine to Director Thompson. Newman said [the Petitioner] was alone in his vehicle when the transaction occurred.
Newman admitted that he pled guilty to two counts of submitting worthless checks, two counts of retaliation for past actions, five counts of forgery, one count of theft over a thousand dollars, and one count of failing to make a court appearance. He pled guilty to these offenses in July of 2009. He denied, however, receiving a plea deal in those cases or receiving any leniency in criminal proceedings based on his work as a confidential informant. He claimed he entered a "blind plea, " in which the trial court decided his sentence. On cross-examination, Newman testified that he was not currently in prison. He said he was serving a probationary sentence of four and a half years. Newman acknowledged that he was paid for testifying in court and having previously worked as a confidential informant.
Samantha testified and substantially corroborated Newman's testimony. In addition, she explained that she had known [the Petitioner] for several years before the drug purchase. She acknowledged that she was also being paid to testify and that she had pending charges in Tipton County.
Director Thompson testified and further corroborated the testimony of the confidential informants. He additionally testified that they did not use a wire or video equipment that night. At the gas station, Director Thompson noticed [the Petitioner] was in the driver's seat and another individual was in the passenger's seat. The passenger got out of the vehicle and went into the store. Director Thompson said Newman pulled up next to [the Petitioner]'s vehicle and began a conversation. [The Petitioner] asked about the identity of Director Thompson. Newman referred to him as "Little Darrell." Director Thompson said Newman asked [the Petitioner] if he had any "ladders, " meaning Xanax. [The Petitioner] gave a non-responsive answer. He then held up a bag containing a white substance and said, "Fifty." Director Thompson said Newman asked him whether to make the purchase. Director Thompson told Newman to buy the cocaine and handed him fifty dollars. Newman then got out of his vehicle, went to the passenger's window of [the Petitioner]'s vehicle, and conducted the transaction. Director Thompson said Newman immediately returned to his vehicle and handed him the bag of cocaine. Director Thompson testified that the bag remained in his custody until he gave it to Investigator Robbins.
Agent Erica Moody Katherine, a forensic scientist for the Drug Identification Unit of the Tennessee Bureau of Investigation and an expert in drug identification, examined a rocklike substance which she received from the Atoka Police Department. The subject name was Stacy Fleming. She found that the substance contained 0.55 grams of cocaine. Agent Katherine said this measurement had a standard deviation of 0.03 grams. On cross-examination, Agent Katherine acknowledged that the weight of a substance could be affected by outside factors.
Randall Robbins, an investigator with the Drug Task Force of the Atoka Police Department, testified that the confidential informants involved in this case were each paid fifty dollars for their services. Investigator Robbins testified that on December 1, 2007, he received contraband from Director John Thompson. Investigator Robbins placed the contraband in a plastic bag and filed a request for examination with the crime lab for the Tennessee Bureau of Investigation. He put the contraband in a safe at the Atoka Police Department so that Investigator Christopher Ellwood could send it to the crime lab the following morning. Investigator Robbins said he was not at the scene of the drug purchase.
On cross-examination, Investigator Robbins acknowledged that many confidential informants have drug problems, criminal records, or face pending charges. He said Newman was under investigation for several offenses at the time he served as a confidential informant. Investigator Robbins acknowledged that Newman was subsequently convicted of multiple felonies. Investigator Robbins said he spoke with the district attorney's office about Newman's work as a confidential informant.
Investigator Christopher Ellwood testified he transported the contraband from the Atoka Police Department to the crime lab for the Tennessee Bureau of Investigation.
Mary Payne ("Payne"), a friend of [the Petitioner]'s, testified that she, and her husband, Joshua Payne ("Joshua"), were with [the Petitioner] on the night of the offense. They drove to Memphis in [the Petitioner]'s vehicle to buy cocaine. Payne said she paid fifty dollars for half a gram. The dealer weighed the cocaine before the purchase. Payne testified that on the drive home, they ingested cocaine. She said they sniffed the cocaine off their car keys, which they dipped into the bag. Payne stated, "I know I did probably about three keys . . . ." Upon returning to Tipton County, they stopped at a gas station to buy beer and cigarettes. Payne went into the store by herself. [The Petitioner] and Joshua remained in the vehicle. They were upset when she returned. She stated, "Well, my husband and [the Petitioner] were pretty upset because [Newman] had come up to the car and they were keying the powder and he had snatched it from them and threw the money in the car." Payne did not observe these events. She said [the Petitioner] gave her fifty ...