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State v. Gunn

Court of Criminal Appeals of Tennessee, Jackson

January 30, 2015

STATE OF TENNESSEE
v.
BENJAMIN GUNN

Assigned on Briefs August 05, 2014

Appeal from the Criminal Court for Shelby County No. 0902072 W. Mark Ward, Judge.

Andrew R. E. Plunk, Memphis, Tennessee, for the appellant, Benjamin Gunn.

Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Megan Fowler and Gavin Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Alan E. Glenn and Roger A. Page, JJ., joined.

OPINION

THOMAS T. WOODALL, PRESIDING JUDGE

404(b) hearing

The charges in this appeal resulted from the execution of a search warrant at Defendant's home on February 29, 2008. Prior to any proof being presented at trial, the State presented a motion in limine to be allowed to introduce evidence that prior search warrants were executed at Defendant's home on August 1 and August 19, 2007. The State argued that the evidence was relevant to prove Defendant's intent to sell or deliver, as well as to rebut a possible defense of mistake or accident if Defendant presented proof that the drugs were for his personal use. In its argument to the court, the State emphasized that the prior search warrants were executed six months prior to the search warrant leading to the charges in this case.

The trial court permitted the State to introduce evidence of the search warrants executed on August 1 and August 19, 2007, finding that there was clear and convincing evidence of the incidents, that they were relevant to prove Defendant's intent to sell and Defendant's actual possession of the drugs, and that the probative value was not outweighed by the danger of unfair prejudice.

Trial

On August 1, 2007, Detective Kittrel Robinson of the Memphis Police Department executed a search warrant at Defendant's residence based on information obtained from a confidential informant. Detective Robinson testified that Defendant was not the "target" of the search warrant executed on August 1, 2007. He testified that Defendant owned the residence to be searched but that the confidential informant had purchased drugs from Trennel Smith. When Detective Robinson entered the residence to execute the search warrant, he observed Defendant "grabbing the drugs off the table and running to the bathroom[, ]" where Defendant tried to dispose of crack cocaine in the toilet. Officers recovered marijuana and crack cocaine.

Detective Robinson executed another search warrant at Defendant's residence on February 29, 2008. Detective Robinson testified that Defendant was the "target" of that search warrant. Detective Robinson conducted surveillance of the residence prior to the execution of the search warrant. He testified that he had observed Defendant meet people at the door. Visitors would enter the residence for one minute or less and then leave. Detective Robinson testified that he observed more traffic to the residence than was typical in the area where the house was located.

When Detective Robinson entered the house on February 29, 2008, Defendant ran to a bedroom in the back of the house. Detective Robinson chased Defendant and saw Defendant dropping rocks of crack cocaine as he ran. Detective Robinson apprehended Defendant in the bedroom as Defendant was throwing powder cocaine from his hand. Police recovered approximately eight grams of crack cocaine that Defendant dropped while running and one gram of powder cocaine. The crack cocaine was individually packaged, which is consistent with resale. Detective Robinson testified that marijuana was found on a table in the living room. A Tennessee Bureau of Investigation lab report indicated that the weight of the marijuana was 7.12 grams. On cross-examination, Detective Robinson testified that "a pipe" was found on the bed where he apprehended Defendant. He also testified that police did not find any cash on Defendant's person or in the house.

Memphis Police Officer Charles Teeters assisted in conducting surveillance of Defendant's residence on August 19, 2007. Officer Teeters observed "foot traffic come to the residence, stay for a brief period of time and then leave[, ]" which was consistent with street level drug sales. Officer Teeters observed individuals knock on the front door, enter the residence, and stay for a short period of time. He saw the individuals exchange items with someone inside the residence. Officer Teeters conducted a "knock and talk." He and other officers entered the residence, and Officer Teeters noticed a "strong odor of burnt marijuana in the air." He heard "running in the back and voices in the back [of the house]." Officer Teeters conducted a ...


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