Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs September 9, 2014
Appeal from the Circuit Court for Bedford County Nos. 17535, 17609 Franklin Lee Russell, Judge
James Ronald Tucker, Jr. (at trial and on appeal), Shelbyville, Tennessee, and Clay Parker (at trial), Shelbyville, Tennessee, for the appellant, Jeffery Scott Hutchinson.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Robert James Carter, District Attorney General; and Richard A. Cawley and Brooke C. Grubb, Assistant District Attorneys General, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Timothy L. Easter, JJ., joined.
D. KELLY THOMAS, JR., JUDGE
On November 19, 2012, a Bedford County grand jury returned a four-count indictment against the Defendant (Case No. 17535), charging him with initiating a process intended to result in the manufacture of methamphetamine, a Class B felony; promoting the manufacture of methamphetamine, a Class D felony; possessing .5 grams or more of methamphetamine for "resale, " a Class B felony; and possessing .5 grams or more of methamphetamine with intent to deliver, a Class B felony. See Tenn. Code Ann. §§ 39-17-417, -433, -435. These charges stemmed from the following events: On August 11, 2011, the authorities were notified that Jonathan L. Wiser was attempting to purchase Sudafed tablets—which contain pseudoephedrine, a precursor to manufacturing methamphetamine—at a CVS pharmacy in Shelbyville. Wiser testified that he agreed to purchase these pills for the Defendant in exchange for "a small bag of pot" while the Defendant waited in the parking lot. Officers observed Wiser exit the store and approach a blue Chevrolet truck, which was driven by a white male, later identified as the Defendant. Officers followed the Defendant from the CVS parking lot.
When the Defendant stopped at a local residence, Officer Shane George of the Shelbyville Police Department approached the Defendant, stating his knowledge of the Defendant's possession of pseudoephedrine tablets, and asked the Defendant for consent to search the truck and the Defendant's person. The Defendant gave his consent. On the Defendant's person, Officer George discovered a pack of cigarettes in his shirt pokcet, which held one small plastic bag containing methamphetamine and coffee filters with methamphetamine inside. The CVS-brand pseudoephedrine tablets, two "fresh" lithium batteries, and another plastic bag in the console containing additional pseudoephedrine tablets were found inside the Defendant's truck.
The Defendant was advised of his Miranda rights and waived them. When asked about the recently purchased pseudoephedrine tablets, the Defendant stated that he intended to take these tablets to Donny Gannon, a well-known methamphetamine manufacturer according to Officer George. When that information failed to pan out, the Defendant admitted he was a regular methamphetamine user and often manufactured methamphetamine, both for personal use and to exchange for more boxes of pseudoephedrine tablets.
The Defendant then led the officers to his residence and consented to a search. Officers located more pseudoephedrine tablets, mason jars with methamphetamine residue, "open blister packs that the pseudoephedrine had been taken from, " and a gallon-size container of muriatic acid. According to Officer George, the Defendant admitted that he had previously used the muriatic acid in the manufacturing process. The Defendant showed the officers the enclosure where he manufactured the methamphetamine and told the officers that, when he was through manufacturing, he would burn the remnants in a fire pit. Officer George observed within the fire pit "busted casings of the lithium batteries" and "a crushed gallon-size container of Coleman camping fuel."
The Defendant was released on bail for the drug charges (Case No. 17535) following his arraignment, and the matter was reset for December 17, 2012. A new attorney was appointed for the Defendant on December 17,  and that attorney asked for a continuance so he could "have more time to talk" with the Defendant. The court asked if January 14 was permissible, and the attorney responded affirmatively. The court then discussed the payment of fees with the Defendant; at the conclusion of which, the court asked, "You know your next court date, right?" The Defendant replied, "January 14th, " and the court further informed him, "It will be at 9:00 in the morning." That concluded the hearing. An order was also entered setting the next court date for January 14, 2013, at 9:00 a.m. Although the date was clearly referenced in both the courtroom and the order, the day of the week he was scheduled to appear was not stated. The Defendant failed to appear on Monday, January 14, and he was indicted for that offense, a Class E felony, on February 25, 2013 (Case No. 17609). See Tenn. Code Ann. § 39-16-609.
The Defendant proceeded to trial on the drug charges. A jury found him guilty as charged of initiating a process intended to result in the manufacture of methamphetamine and of promoting the manufacture of methamphetamine and of two counts of the lesser-included offense of simple possession of methamphetamine, a Class A misdemeanor. He, thereafter, was tried separately for the failure to appear charge. At his trial on that charge, the following proof was adduced. The transcript of the December 17, 2012 hearing ordering the Defendant to appear on January 14, 2013, was entered as exhibit. Diane Clanton, deputy clerk for the circuit court's criminal division, identified the order entered by the trial court directing the Defendant to appear on said date. Ms. Clanton testified that she usually provided copies of all orders to the district attorney general's office but did not normally provide them to defense counsel "unless it [was] the public defender" or unless defense counsel asked for it. Ms. Clanton believed that the Defendant came to her office on January 15, 2013, although she could not state this with certainty.
Tabitha Philpot, with the Bedford County Sheriff's Department, testified that she was the circuit court liaison for the sheriff's department and that the trial judge for the December 17, 2012 and January 14, 2013 proceedings normally held court on Mondays. Ms. Philpot confirmed that the Defendant was instructed in court to return on January 14 at 9:00 a.m. and that he was not present on January 14 as instructed. Ms. Philpot was responsible for telling defendants when they were to appear and for noting who did and who did not appear. She believed that the Defendant was released on bond when he failed to appear because he was not in ...