Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 16, 2014
Appeal from the Criminal Court for Davidson County No. 2012B1770 Cheryl A. Blackburn, Judge.
Nicholas Tuck McGregor, Nashville, Tennessee, for the appellant, Timothy Allen Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney General, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J. and Robert W. Wedemeyer, J., joined.
JOHN EVERETT WILLIAMS, JUDGE
I. Facts and Procedural History
This case arose out of an incident where the defendant agreed to obtain crack cocaine for two undercover police officers to purchase. Detective Michael Donaldson testified that on the evening of March 27, 2012, he and his partner, Detective Brittany Shoesmith, were participating in a "buy-bust" operation. In a "buy-bust" operation, undercover detectives pose as drug users to purchase a controlled substance from a target. Once the purchase is complete, a "takedown team" immediately arrests the seller. The members of the takedown team wear "clearly marked raid gear" identifying themselves as police officers, and they move into position to arrest the seller after receiving a "takedown signal" from the undercover officers. On the evening of the incident, Detectives Donaldson and Shoesmith were playing the role of drug purchasers. In order to maintain their cover, the detectives were in an unmarked vehicle that did not have police lights or sirens.
After receiving reports of drug sales in the area of Waverly and Wedgewood, Detectives Donaldson and Shoesmith proceeded to the area to see if they could purchase drugs. When they arrived, the detectives pulled into an alley and encountered a female walking through the alley. Detective Donaldson asked the woman if she knew where he could purchase drugs. The woman gestured toward three individuals, one of whom was the defendant, standing near the end of the alley. Detective Donaldson approached the group on foot, and the defendant was on a cellular telephone. Detective Donaldson addressed the group, stating that he needed "a thirty." The defendant replied that he currently did not have any drugs but was attempting to get more. After the defendant said he needed to "re-up, " Detective Donaldson walked away, waited for ten minutes, and then returned to the group.
When he returned, Detective Donaldson again asked the defendant for drugs. The defendant said that he still did not have any but that he knew a place where he could take Detective Donaldson to get the drugs. They walked across the street, where the defendant told Detective Donaldson to wait while the defendant approached a house. Detective Donaldson witnessed the defendant knock on the door, saw the door open, and saw someone speak with the defendant. The defendant returned to Detective Donaldson and told him that he was unable to acquire drugs but that he knew of a third location to visit, which would require Detective Donaldson to drive. After telling Detective Donaldson that the location was close, the defendant entered the vehicle with Detectives Donaldson and Shoesmith.
The three drove to a gas station parking lot near Fairfield and Lafayette streets, and the detectives gave the defendant thirty dollars of photocopied "buy money." After making a phone call, the defendant exited the vehicle, and the detectives saw the defendant go into "the project[s] somewhere." The detectives lost sight of the defendant and waited in the car for his return.
While the detectives were waiting, a "Flex team, which is an entire team of marked officers in cars that have blue lights" and uniforms, pulled into the parking lot. Officers were patrolling the parking lot on foot, and "seven or eight marked officers" were standing in the parking lot when the defendant returned. After seeing the officers, the defendant became panicked. He told the detectives, "[W]e got to go, we got to go." Detective Donaldson told the defendant that he either needed to receive the drugs or his money before leaving the gas station, to which the defendant replied, "[W]e're good, we're good, we got to go." The defendant directed Detective Shoesmith to exit the gas station, and she began driving.
As they began driving, Detective Donaldson observed the defendant in the backseat with "a bag of crack" that appeared to be an eighth of an ounce. The drugs were in a corner portion of a ziploc baggie that had been torn away from the main bag. When Detective Donaldson remarked that the amount seemed like "a lot for a thirty[, ]" the defendant responded that not all of the drugs were for Detective Donaldson. The defendant opened the bag and gave Detective Donaldson thirty dollars worth of crack cocaine. Detective Donaldson secured the drugs by placing them into an ashtray, and Detective Shoesmith continued to drive. Detective Donaldson then gave the "takedown" signal.
An officer on the takedown team pulled in front of the vehicle and activated his blue lights. Detective Donaldson heard the defendant say, "[I]t's the vice, it's the vice." Detective Donaldson turned toward the backseat and witnessed the defendant placing both the plastic bag and its contents into his mouth in an attempt to ingest the remaining amount of drugs. Detective Donaldson began to wrestle with the defendant to prevent him from consuming the drugs as the takedown team was running toward the vehicle. The takedown team wore "raid gear that sa[id] police all over the front of it and all over the back of it." The defendant fought with the officers who attempted to remove him from the ...