Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015
Appeal from the Circuit Court for Lewis County No. 2011-CR-106 Robbie T. Beal, Judge
Vanessa Pettigrew Bryan, District Public Defender and David Christensen, Assistant Public Defender, Franklin, Tennessee, for the appellant, Jeffrey Gallaher.
Herbert H. Slatery, III, Attorney General and Reporter; Meredith Devault, Senior Counsel; Kim Helper, District Attorney General; and Stacey Edmonson, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
TIMOTHY L. EASTER, JUDGE
Defendant was indicted by the Lewis County Grand Jury for aggravated assault, introduction of contraband into a penal facility, and possession of a schedule IV drug in relation to an argument with his wife and his subsequent arrest.
On April 3, 2011, officers from the Hohenwald Police Department responded to a domestic disturbance call on Centerville Highway. When Officer Kip Kelsey arrived, a man and woman later identified as Defendant and his wife, Lisa Gallaher, were outside arguing and yelling at each other. Mrs. Gallaher was "standing on one side of the vehicle with a knife in her hand, and [Defendant was] on the other side with nothing in his hand." There was a lot of "busted glass" from the windows of the vehicle in the driveway and the sliding glass door." Officer Kelsey exited his vehicle with his gun drawn, instructed Mrs. Gallaher to drop the knife, and told both Mr. and Mrs. Gallaher to "get on the ground." Officer Eric Taylor arrived shortly thereafter.
Officer Kelsey described both parties as "upset." Defendant and Mrs. Gallaher gave conflicting statements about the events leading up to the argument, though Defendant admitted that he broke out all the windows in the vehicle. Officers recovered a knife, an ax, and an ax handle from the scene. They were unable to determine the identity of the primary aggressor, so both Defendant and Mrs. Gallaher were arrested for aggravated assault.
Officer Kelsey performed a search of Defendant incident to his arrest. At the time of the search, Defendant was handcuffed with his hands behind his back. Officer Kelsey noted that Defendant had "lots of keys" on a keychain in one of his pockets when he was arrested. During the search, Officer Kelsey "located a small pill in the zipper of [Defendant's] overalls." Defendant stated that it was a Xanax. The officer asked if Defendant had any other drugs on his person. Defendant stated that he did not have any other drugs on his person.
Defendant was transported to the Lewis County Jail. Officer Kelsey escorted Defendant into the jail where he was searched by Allen Carol, a correctional officer at the Lewis County jail. Officer Carol testified that at the time of arrest, "subjects are given an opportunity to tell [us] if they have anything [contraband] on their person." Additionally, he explained that it is posted in the "sally port" that you are not allowed to bring any contraband into the jail.
During the booking process, the handcuffs are normally removed from the person being brought to the jail. During the booking process, Officer Carol "put[s] on gloves, ask[s] them to take off shoes, belt, and . . . ask[s] them again if they have anything inside their pockets. If they say no or if they hand me a wallet, whatever, I'll ask them to put their hand on the wall, and I'll start my pat down." The pat down is done for safety and to ascertain whether the individual is carrying weapons or drugs. Officer Carol could not recall with specificity whether he asked Defendant if he had anything in his pockets, but during the pat down, he located a "small red container" in Defendant's "front right pocket." When the item was removed from his pocket, Defendant exclaimed, "[expletive], you found my stash!" Inside the red container were "nine tablets" identified by the Tennessee Bureau of Investigation as Alprazolam, commonly referred to as Xanax.
At the conclusion of the proof, the jury found Defendant not guilty of aggravated assault and guilty of introduction of contraband into a penal facility and possession of a schedule IV drug. The trial court held a sentencing hearing. At the hearing, Defendant was sentenced to six years as a Range II, multiple offender for the conviction for introduction of contraband into a penal facility. Defendant was sentenced to eleven months and twenty-nine days ...