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State v. Sizemore

Court of Criminal Appeals of Tennessee, Nashville

November 7, 2014

STATE OF TENNESSEE
v.
BILLY DEAN SIZEMORE

Session July 15, 2014

Direct Appeal from the Circuit Court for Lewis County No. 2010-CR82 Timothy Easter, Judge

Steve M. Garner, Franklin, Tennessee, for the appellant, Billy Dean Sizemore.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Kim R. Helper, District Attorney General; and Sean Duddy, Assistant District Attorney General, for the appellee, State of Tennessee.

Norma McGee Ogle, J., delivered the opinion of the Court, in which Thomas T. Woodall and Alan E. Glenn, JJ., joined.

OPINION

NORMA McGEE OGLE, JUDGE

I. Factual Background

Joe Ashmore, a narcotics agent with the 21st Judicial District Drug Task Force, testified that on June 2, 2009, he received a telephone call from Dale Potter, a confidential informant (CI). Potter told Agent Ashmore that he had been in contact with the appellant and that the appellant claimed to have some pills to sell. Agent Ashmore and Agent Doug Totty met with Potter and Potter's wife, and Mr. Potter placed a recorded, controlled telephone call to the appellant. The State played the recorded call for the jury. During the call, Mr. Potter told the appellant that he wanted to "get a couple of more of them" and agreed to meet the appellant at a bridge near Mr. Potter's house.

Agent Ashmore testified that the agents searched the Potters and their vehicle for money and drugs and that he equipped Mr. Potter with a transmitter and recorder. Agent Ashmore was hoping the Potters would buy three morphine pills from the appellant for $20 each and gave Mr. Potter $60. The Potters went to the location on Fite Road. Agent Ashmore stated that he saw them meet the appellant, who was in a black vehicle, and that the Potters and the appellant conducted the drug transaction, which was recorded. The State played the recording for the jury. During the transaction, the appellant told Mr. Potter, "I got $500 worth yesterday and now I got two left." After the drug buy, the Potters met Agent Ashmore at a predetermined location. Agent Ashmore took possession of two pills and $20. He also searched the Potters and their vehicle again. Agent Ashmore paid Mr. Potter $100 for his participation in the drug buy.

On cross-examination, Agent Ashmore testified that in 2007, he purchased Lortab from Mr. Potter. Mr. Potter pled guilty to a crime and began working as a CI for Agent Ashmore. On June 2, 2009, the appellant sold the Potters two morphine pills and kept two pills for himself. Agent Ashmore said he could not see "hand movements and hand to hands" during the transaction. He also did not see the Potters give any money to the appellant.

On redirect examination, Agent Ashmore testified that it was not uncommon for drug dealers to keep some pills for themselves because many dealers were addicts. Dealers also held back pills in order to deliver them to other customers. On recross-examination, Agent Ashmore acknowledged that he did not hear Mr. Potter's initial conversation with the appellant on June 2.

Deputy Douglas Totty of the Humphreys County Sheriff's Department testified that on June 2, 2009, he worked for the 21st Judicial District Drug Task Force and assisted Agent Ashmore with an investigation of the appellant. Deputy Totty searched the Potters' car before and after the drug transaction but did not find anything. He said he did not hear or see the transaction but kept in constant contact with Agent Ashmore by radio. On cross-examination, Deputy Totty testified that he was "in the vicinity" of the transaction and was present to assist Agent Ashmore in case "something went bad."

Glen J. Glenn, a special agent forensic scientist with the Tennessee Bureau of Investigation (TBI), testified that he analyzed the two pills received by Agent Ashmore. He determined that the pills were morphine, a Schedule II controlled substance.

Dale Potter testified that in 2001, he was convicted of failure to appear and simple possession of marijuana. He received probation for the latter offense but violated probation by failing to pay fines. In October 2007, Mr. Potter was charged with felony delivery of a drug but was convicted of a misdemeanor because he agreed to work as a CI. He received probation for the conviction but violated his probation, again due to nonpayment of fines.

Mr. Potter testified that on June 2, 2009, he telephoned the appellant, whom he had met "through a friend of a friend, " to find out if the appellant had any pills. The appellant said he did, so Mr. Potter telephoned agents at the drug task force and told them that he would be able to make a drug buy. Mr. Potter and his wife met with Agent Ashmore, and Agent Ashmore searched them and "put a wire" on Mr. Potter. Mr. Potter telephoned the appellant and arranged to meet him on Fite Road. Mr. Potter said that he was supposed to buy three 60-milligram morphine pills from the appellant for $20 each and that Agent Ashmore gave him $60.

Mr. Potter testified that he and his wife went to the location and that the appellant was there in a black Lincoln Continental. The appellant told Mr. Potter that he had purchased $500 worth of pills the previous day and had only four remaining. Mr. Potter asked to buy three pills, but the appellant wanted to keep two for himself, so Mr. Potter bought two pills, leaving the appellant with two pills. Mr. Potter gave $40 to the appellant, and the appellant put the money into his wallet. Mr. Potter returned to the agents and gave them the two pills and the remaining $20. Mr. Potter said he had not received anything from the State in exchange for his testimony.

On cross-examination, Mr. Potter testified that the agents did not pay him anything on June 2 and that he participated in the drug buy "just . . . to be doing it." Defense counsel showed Mr. Potter a document from the drug task force, showing that Mr. Potter had received $100, and Mr. Potter stated, "I didn't recall getting paid for it." He said he had known the appellant five or six months at the time of the buy but did not know where the appellant lived. He stated that he had been taking prescribed 100-milligram morphine ...


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