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State v. Morris

Court of Criminal Appeals of Tennessee, Jackson

December 2, 2014

STATE OF TENNESSEE
v.
KENNETH JAMES MORRIS

Assigned on Briefs September 3, 2014

Appeal from the Circuit Court for Weakley County No. 2013-CR-22 William B. Acree, Jr., Judge

Beau E. Pemberton, Dresden, Tennessee (at trial and on appeal), for the appellant, Kenneth J. Morris.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Thomas A. Thomas, District Attorney General; Colin Johnson (at sentencing); and Kevin McAlpin (at trial), Assistant District Attorneys General, for the appellee, State of Tennessee.

Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.

OPINION

ROBERT L. HOLLOWAY, JR., JUDGE

Factual and Procedural Background

A Weakley County Grand Jury indicted the Defendant on one count of manufacture of a Schedule II controlled substance within a drug-free zone, [1] one count of initiation of a process intended to result in the manufacture of methamphetamine, and one count of promotion of methamphetamine manufacture. The Defendant proceeded to a jury trial on April 23, 2013. The indicted offense of initiation of a process intended to result in the manufacture of methamphetamine was dismissed at trial.

Proof at Trial

On October 12, 2012, Dresden Police Officer Steven Howe and Lieutenant Chris Crocker assisted Probation Officer Justin Tubbs in the "extraction" of Michael Roney, a registered sex offender, from a house located at 614 Linden Street in Dresden where Mr. Roney's GPS tracking device indicated he was living. The house was across the street from a public school. When the three officers arrive at the home, Officer Howe positioned himself at the back corner, while Officer Tubbs and Lieutenant Crocker knocked on the front door. As he was moving into position, Officer Howe saw two silhouettes in a window and heard two male voices. After being alerted that the other officers had contact, Officer Howe walked to the front of the house. Approximately six or seven feet from the front door, he smelled an "overwhelming" odor that he recognized as that of a methamphetamine laboratory. The Defendant was removed from the home by Lieutenant Crocker. Officer Howe and Officer Tubbs entered the home to search for Mr. Roney. They found him in a "back portion of the house behind a curtain" which was being used as a door. When Mr. Roney opened the curtain, Officer Howe spotted "foil sliders" and methamphetamine pipes on top of a coffee table. Mr. Roney was removed from the house and placed under arrest.

Officer Howe advised Mr. Roney and the Defendant of their rights. The Defendant consented in writing to a search of his home.[2] Rather than proceed with the search, Officer Howe requested Weakley County Sheriff's Department Investigator Randall McGowan to come to the scene. After verifying no other individuals were in the house and securing the scene, Investigator McGowan decided to obtain a search warrant. During the execution of the search warrant, the officers discovered two bags of methamphetamine, "one-pot" methamphetamine bottles, [3] scales, methamphetamine ingredients, [4] a heating device, laboratory equipment, various drug paraphernalia, and a "50-gallon drum" containing twelve to eighteen used methamphetamine bottles.[5] Two of the one-pot methamphetamine bottles were actively producing methamphetamine. Altogether, the officers found more than nineteen grams of methamphetamine. Officer Howe stated "in this house, you couldn't stick your arms out without touching some piece of a meth lab." According to Officer Howe's measurements, the house was approximately 584 feet from the public school building and approximately 126 feet from the school property.

On cross-examination, Officer Howe identified the bags of methamphetamine, foil slides, pipes, punches, and tubing as evidence found in the front bedroom where Mr. Roney was hiding and where he had spotted the two silhouettes from outside. Officer Howe testified that he found a barrel containing used methamphetamine bottles and some of the Defendant's clothing in the rear bedroom. He also noted that the officers discovered ephedrine in used methamphetamine bottles and a hidden duffle bag containing laboratory equipment. He did not believe Mr. Roney could have brought all of the evidence into the home in one night. Officer Howe acknowledged that he could not determine how long the bottles producing methamphetamine had been active, nor could he determine how long the other one-pot methamphetamine bottles had been at the house. He explained that eight months before the search, he smelled a methamphetamine laboratory odor near the home but could not confirm the source. He and other officers subsequently watched the Defendant's home for one month, but nothing occurred in that time that would have allowed him to initiate a case.

Investigator McGowan testified that he had substantial experience in methamphetamine detection, arrests, cleanup, and investigations. On October 12, 2012, he responded to Officer Howe's request for assistance at the Defendant's home. Investigator McGowan identified items used to manufacture methamphetamine from photographs taken at the scene. In particular, he identified a two-liter bottle containing ephedrine pills covered in camp fuel as "an active bubbling, cooking one-pot meth lab."[6] Investigator McGowan stated that he cleaned up eighteen used one-pot methamphetamine bottles and twelve homemade gas generators. Based on his experience, he believed the amount of methamphetamine discovered would be worth approximately $2, 000.

On cross-examination, Investigator McGowan noted that bottles were found in all areas of the home except for one bedroom. One active methamphetamine bottle was discovered behind a chair in the living room. He acknowledged that the one-pot method is a portable method of methamphetamine production, and that there is no way to determine if all of the methamphetamine was made at the Defendant's home or who was producing methamphetamine.

Special Agent Brock Sain, a forensic scientist with the Tennessee Bureau of Investigation ("TBI") in Memphis, testified as an expert in the field of drug identification forensic chemistry. At trial, he identified a sealed package containing two exhibits that he analyzed. He determined that the first exhibit contained 19.20 grams of ...


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