Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs November 18, 2014
Appeal from the Criminal Court for Sullivan County No. S57419 R. Jerry Beck, Judge
Randall D. Fleming (at trial and on appeal) and Katherine L. Tranum (at trial), Kingsport, Tennessee, for the appellant, Willard V. Fleming.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Barry Staubus, District Attorney General; and Josh Parsons, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Robert W. Wedemeyer, and Timothy L. Easter, JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTUAL AND PROCEDURAL HISTORY
The defendant's convictions came about as the result of a controlled cocaine purchase during which the defendant's daughter discovered that the purchaser, a long-time friend, was wearing a wire. The police subsequently extricated the purchaser, a confidential informant who told law enforcement that the defendant had pointed a gun at him after the wire was discovered. The defendant and his daughter were charged in a four-count indictment which alleged that both had committed the offenses of sale of cocaine and maintaining a dwelling which is used for keeping and selling controlled substances; the indictment further charged the defendant with aggravated assault and his daughter with destruction of evidence. At trial, the State presented the reluctant testimony of the confidential informant and the reluctant testimony of the defendant's daughter. The testimony of law enforcement and a video recording of the transaction, in which the defendant was not visible, were also introduced.
Brian Puckett, the confidential informant, at first refused to testify. After the trial court summoned an attorney to advise Mr. Puckett, he agreed to give evidence. The trial court allowed the State to treat him as a hostile witness. Mr. Puckett stated that on October 7, 2009, he spoke to Terra Fleming, the defendant's daughter, on the phone and arranged to buy an "eight ball" of cocaine. Mr. Puckett testified that he was paid for his role in the controlled buy but that his real motivation was to regain custody of his son, who had been in the custody of the Department of Child Services since the arrest of the boy's mother. According to Mr. Puckett, prior to the purchase, Detective Cliff Ferguson wrote out a statement saying that law enforcement would assist Mr. Puckett in a custody hearing if he agreed to participate in the controlled buy. He testified that law enforcement reneged on this agreement and that his attempts to reach Detective Nathan Elliott on his cell phone prior to the custody hearing were unsuccessful.
Mr. Puckett testified that law enforcement put a wire on him and, following his directions, drove him to the defendant's home. Mr. Puckett knew that the defendant lived at that residence because Mr. Puckett had grown up with the defendant's daughter, Ms. Fleming, and because at the time, he was a friend of the family. Ms. Fleming met Mr. Puckett at the back door, and he gave her two hundred dollars. Mr. Puckett testified he could see the defendant sitting in the living room in a love seat or recliner. Ms. Fleming took the money, went in the house, returned, gave Mr. Puckett a hug, and felt the recording equipment. Mr. Puckett testified that he believed Ms. Fleming had the cocaine with her. Mr. Puckett initially testified that the cocaine was never placed in his hands; later, he testified that he did not remember if it was in his hand and that Ms. Fleming may have grabbed it from him.
After discovering the wire, Ms. Fleming tried to pull Mr. Puckett into the house, and Mr. Puckett started repeating the agreed-upon code word for distress, "Mickey Mouse." He testified that when Ms. Fleming tried to pull him into the house, he saw the defendant coming through the hall from a recliner. On the video recording, Mr. Puckett could be heard to say the defendant was on the bed. When questioned about this statement, Mr. Puckett testified that it was false and that the defendant had been on the couch or recliner. Asked about the gun, he at first only testified that he recalled "seeing something." When pressed, he acknowledged that it was a firearm "of some sort" and that he had told police he was afraid the defendant would "blow [his] brains out" because "who wouldn't be." He nevertheless testified that the defendant did not intend to point the firearm at him and that the defendant did not, in fact, point the firearm at him. Mr. Puckett was secured by law enforcement and taken to the police station to complete a statement.
Mr. Puckett was impeached with the statement he had signed on the night of the purchase and which he essentially repudiated at trial. Mr. Puckett testified that the statement was not written by him but by the officer who took it, that he felt had no choice but to sign in order to get custody of his son, and that the officer "put words in [his] mouth." Mr. Puckett denied some material facts asserted in the statement, including that he set up the transaction with the defendant instead of Ms. Fleming; that the defendant came to the door and gave Ms. Fleming the cocaine so she could, in turn, give it to him; and that the defendant pointed a gun at him. Although the trial court determined after a jury-out hearing that Mr. Puckett's signed statement should only be allowed as impeachment, the defense later asked that it be made an exhibit. At the time that the statement was entered as an exhibit, the trial court reiterated its instructions that a witness's prior statement could only be considered for impeachment. Mr. Puckett had a conviction for shoplifting.
Ms. Fleming, the defendant's daughter and co-defendant, testified that she did not want to appear as a witness against her father. Ms. Fleming stated that she, her father, and her father's girlfriend lived at the residence. Ms. Fleming and her family had lived there "[s]ince [she] was little." Ms. Fleming had also been a friend of Mr. Puckett since they "were little kids." Ms. Fleming testified that she did not make arrangements to sell Mr. Puckett cocaine, that she in fact had only been home a few minutes when he arrived, and that she had not had a phone with which to speak to him. While Ms. Fleming testified that she was promised probation in exchange for her testimony, she later clarified that she had already pled guilty and been sentenced to probation and that there was no express plea agreement in place, but rather an understanding that there was a chance she would be called to testify.
Ms. Fleming confirmed that Mr. Puckett gave her about two hundred dollars for cocaine. After watching the video, she recalled that he initially gave her one hundred eighty dollars and that she had to ask him for the last twenty dollars. She testified that the cocaine was in her father's room, in his dresser; however, she did not get it from the dresser but directly from her father, who was "probably" sitting on his bed. She testified that when she went back into the house after receiving the money, she walked a few steps to her father's room. He gave her the cocaine, which was already in a bag. She did not remember if she told her father how much Mr. Puckett wished to purchase. She did not see scales or more than one bag. Ms. Fleming testified she assumed it was an "eight ball, " which is a little over three grams, because of the price. She testified that she then gave the cocaine to Mr. Puckett and hugged him. She felt a box in his pants and then a cable coming up his back. When she felt the cable, he started saying, "Mickey Mouse."
Ms. Fleming testified that they scuffled and that Mr. Puckett punched her in the face with a closed fist. She called for her father because Mr. Puckett hit her and not because of her concern for the failed drug sale. Ms. Fleming testified that she never saw the defendant in possession of anything that looked like a gun; there was a BB gun in the house belonging to the defendant's girlfriend, but Ms. Fleming had not seen it in months. The defendant's girlfriend was present during the incident and could be seen on the video. Ms. Fleming testified that she did not give the money to her father and that she did not know what became of it. She testified that she flushed the cocaine down the toilet. Ms. Fleming acknowledged that ...